Farley's Administrator v. R. & D. R. R.

Hinton, J., delivered the opinion of the court. The only question in this case is whether the demurrer to the evidence was properly sustained. The rule in regard to contributory negligence as laid down in Tuff v. Warman, 5 C. B. (N. S.), 573, the leading case on the subject, is that where the plaintiff has so far contributed to the misfortune by his own negligence or want of ordinary and common care, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened, there the damages cannot be apportioned and the plaintiff cannot recover. But to this rule there is this important qualification added by the very accurate judge who delivered the opinion in that case, namely, that “mere negligence or want of ordinary care and caution will not disentitlé the plaintiff to recover, unless it were such that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened, nor if the defendant might, by exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff and the obvious reason [785] for the qualification is that the mere negligence of the plaintiff cannot operate to discharge the defendant from the duty incumbent upon every person that he must so use his property as not to injure the person and property of his neighbor, if this can be done by the exercise of a proper degree of care on his part.” The rule thus announced has been substantially and generally adopted in this country (see Shear and Redf. on Negligence, 3d ed., sections 25, 36 and 493) and is fully sustained by the decisions of this court in the cases of Dun v. Seaboard & Roanoke R. R. Co., 78 Va. 645, and Rudd v. Richmond & Danville R. R. Co., 80 Va. 546. In the first of these cases Lacy, J., in delivering the opinion of the court, thus announces the rule: “One who is injured by the mere negligence of another cannot recover any compensation for his injury if he, by his own negligence or wilful wrong, contributed to produce the injury of which he complains; so that, but for his concurring and co-operating fault, the injury would not have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence.” Now, in the case at bar, if we apply the rule in regard to demurrer to evidence, that is, admit the truth of all the demurree’s evidence, and all proper and reasonable inferences therefrom, and waive all of the evidence of the demurrant in conflict with that of the demurree, it is still plain that the judgment of the court below was right. The company undoubtedly had the right to the sole and exclusive use of its track at the place where the injury occurred, and the company or its agents had the right to assume that its track would be unobstructed. When, therefore, the engineer discovered, at the distance of 150 yards, that the man was on the track, and did, as the evidence shows he did, all that was pos [786] sible to be done to stop the engine, the company is clearly exempted from liability under the rule above stated. We think, therefore, that the judgment complained of must be affirmed. Judgment aeeirmed'.