Norfolk & Carolina Railroad v. Suffolk Lumber Co.

Keith, P., delivered the opinion of the court. This is an action of covenant brought in the Corporation Court of the city of Norfolk, by the Suffolk Lumber Company against the Norfolk and Carolina Railroad Company, to recover damages for a breach of a certain covenant entered into between them on the 1st day of August, 1889. It seems that the plaintiff owned and operated a narrow-guage railroad from a point in the State of North Carolina to the city of Norfolk, and the defendant company, desiring to construct a line of railway which was to cross the line of the plaintiff at three points, the agreement sued upon was entered into, which recites that: “ Whereas the Norfolk and Carolina Railroad Company desires, in the construction of its railroad, to cross, at grade, the road of the party of the first part at three points or places; * * * “ And whereas, as a condition precedent to the enjoyment of the privileges sought to be obtained by the party of the second part, it is essential to the public safety and to the convenience of the said party of the first part, that the constuction and use or employment of the proposed crossing by the party of the second part, in passage of trains or otherwise, should be so regulated and governed as in no manner to endanger the one or impair the other; “ And whereas justice to the interests of the said party of the first part demands that proper guaranty of indemnity should be given for all losses, injuries, or damages which it may sustain by reason of such crossings, and their employ — 434 — ment by the said party of the second part, which do not result from any negligence or omissions on the part of the agents and employees of the said party of the first part: “Now, therefore, the Suffolk Lumber Company, in consideration of the premises, does hereby grant to the Norfolk and Carolina Eailroad Company, its successors and assigns, the right to cross the road of the Suffolk Lumber Company at the points aforesaid, upon the conditions hereinafter specified, and only so long as the said conditions are complied with by the Norfolk and Carolina Eailroad Company, its successors and assigns, the said conditions being as follows: “ That, in order to enable the said party of the second part .to exercise successfully the privileges herein granted without imposing any hindrance or delay to the movements of trains of and over the track of the said party of the first part, and without injury or detriment to the same by interference or otherwise with its operations, it shall be the duty of the said party of the second part to provide and erect a suitable signal-post, with proper signals for day and night use, and, at its own proper and exclusive cost, to maintain at all times at said crossings, without exception as to days and hours, a watchman or flagman, whose duty it shall be to give such signals to trains and locomotives approaching said crossings, and carry out such other rules and regulations as the transportation department of said party of the first part shall now or hereafter prescribe for his guidance. “ That, in order to insure the public safety, it shall be the imperative duty of the said party of the second part, or of any party or parties who may operate their road, to cause all of its trains, whether regular or irregular, locomotives and cars, to approach said crossings with caution, and at a rate of speed not exceeding five miles per hour, and to require its conductors, engineers, or other persons having charge of its trains, locomotives, and cars, not to cross the railroad and — 435 — track of the said party of the first part, until he has first positively stopped such train, locomotive, or cars, and not to proceed to cross until he has been notified by such watchman or flagman that the track is clear and that he can proceed to cross, and has satisfied himself beyond a doubt that the signal on the signal-post has been placed in accordance with the prescribed rules, so as to permit the passage of the trains of the said party of the second part. “ In case trains of the party of the first part and the party of the second part reach the same points of crossings and connections at the same time, and desire to make use thereof, the trains of similar class of the party of the first part shall have the preference over the trains of the party of the second part (passenger over passenger and freight over freight), passenger trains of either party to have preference over freight trains of either party. “ That it shall be the duty of the said party of the second part, and it does hereby agree and undertake, to provide and erect promptly, at its own proper costs, upon the demand of the party of the first part, such approved appliances as may be deemed necessary by the said party of the first part for the public safety and its better protection. “ That it shall be the duty of the said party of the second part, and it does hereby fully agree and undertake, upon demand of the party of the first part, or its successors, to make good and fully indemnify the party of the first part against any proper claims for loss, injury, or damage which it may sustain by accidents, collisions, delay, or hindrances, or from any other cause arising from or growing out of the acts or omissions of the agents or employees of the said party of the second part in the construction, use, or employment of said crossings. “ In testimony whereof, the parties to these presents have caused the signature of their respective presidents to be here — 436 — unto subscribed, and their corporate seals to be affixed, and attested by their respective secretaries, the day and year first above written. Suffolk Lumber Company, [Seal.] By W. II.- Jackson, President. The Norfolk and Carolina Bailroad Company, [Seal.] By G-eo. S. Scott, President.’’ The declaration contains two counts, from the first of which it appears that on the 6th day of June, 1890, a collision occurred between the trains of the plaintiff and the defendant at the crossing at Station 597-17. The plaintiff, after averring in the usual terms that it had done and performed all things on its part and behalf to be done and performed, according to the tenor and effect, true intent, and meaning of said agreement, complains that the defendant hath not complied with, done, and performed any of the conditions of the said agreement contained on its part and behalf to be complied with, done, and performed, according to the tenor and effect, true intent, and meaning thereof, and then states specifically that the defendant had not erected at the said point of crossing a suitable signal-post, with proper signals for day and night use, and did not maintain the watchman or flagman to give signals, as required by the seventh section of the covenant as above set out, and did not, in fact, give any signals at the said station on the day of the accident, and that the defendant did not approach the crossing at the station named, on the 6th day of June, 1890, with caution, and at a rate of speed not exceeding five miles per hour, and did not require its conductor, engineer, or other person having charge of its train on the 6th day of June, 1890, not to cross the track of the party of the first part until it had positively stopped said train, and did not wait to be notified by the watchman or flagman that the track was clear, and that the — 437 — signals had been placed in accordance with the prescribed rules ; but that, wholly disregarding its duty under its covenant, the defendant wrongfully, on the day aforesaid, proceeded to cross the said crossing with its train, by reason whereof a collision occurred between the train of the plaintiff and that of the defendant, whereby the plaintiff sustained great loss and damage to its property, and has been subjected to great outlay in replacing and repairing the same. The second count is to the same effect, and avers that an accident of a similar character occurred at the same point on the 26th day of June, 1890, and to recover damages for these two injuries, caused by the failure of the defendant company to perform its covenant, the plaintiff brings this suit. The defendant appeared and demurred to the declaration and to each count thereof. The court overruled the demurrer. We do not consider the objection taken to the declaration sufficient, and this assignment of error is overruled. The defendant filed a number of pleas, the first of which is a plea of conditions performed. Upon the motion of the plaintiff, this plea was rejected, and in this, too, we think there was no error on the part of the Corporation Court. “ The general rule as to the mode of pleading the performance of conditions of covenants is that the party must not plead generally that he performed a covenant or condition, but must show specially the time, place, and manner of performance, and even though the subject to be performed should consist of several different acts, yet he must show the performance of each.” 4 Minor’s Inst., Pt. II., p. 1202 (3d ed., 1893). This rule is said to admit of relaxation in certain classes of cases, as, for instance, where the subject comprehends a great multiplicity of particulars, as in the case of a sheriff’s bond for the performance of all of his multifarious duties. The case under consideration, however, falls rather within the rule than within any of the exceptions thereto, and we are therefore — 438 — of opinion that the action of the Corporation Court- as to this plea was correct. The same observations apply to the ruling of the court upon the defendant’s sixth plea, which is the plea of non damnificatus. 4 Minor’s Inst., Part II., p. 1203 (3d ed.). The second and third pleas offered by the defendant to the first count of the plaintiff’s declaration are substantially the same. They deny the plaintiff’s right to recover, because the collision complained of “ did not happen by reason of any breach, or alleged breach, of the covenants, conditions, or agreements, or of any or either of them, in the said first count of the declaration mentioned, but the proximate cause thereof was the negligence and want of ordinary care of the plaintiff in approaching with its train the point of collision, at the time mentioned and alleged as the time of said collision in the first count of the declaration.” And the pleas further aver “ that after the plaintiff knew of the acts and omissions complained of in said count as constituting the negligence and improper conduct of the defendant, the plaintiff might and could have avoided the collision by stopping its train as aforesaid, approaching the point of collision, and before reaching said point, and could have stopped the same by use of ordinary care and diligence, but it utterly failed to use such ordinary care and diligence, and to stop its train, whereby said collision occurred ; and the defendant says that, if it had not been for such negligence and want of ordinary care on the part of the plaintiff, the collision would not have occurred, and that the said defendant could not, after becoming aw.are of the said negligence and want of proper care on the part of the plaintiff, avoid the consequences and avert the collision.” The fourth plea avers that after the agreement of the 1st of August, 1889, had been entered into between the parties, the defendant had been, with the knowledge and acquiescence — 439 — and without objection on the part of the plaintiff, habitually-operating its road over the said crossing, without the provision and erection of any signal-post thereat, and without any watchman or flagman at said crossing, and without stopping its train before proceeding to cross, and that the provisions and requirements of the said agreement, to be done and performed on the part of the said defendant, were entirely ignored and dispensed with by the said plaintiff, all of which the plaintiff knew at and before the time of said collision, and that therefore it was the duty of the plaintiff, in approaching the said crossing with its trains, to have the same provided with proper appliances for the ready and prompt stopping of the same, and to have the same properly manned, and to approach the crossing with proper care and caution, so as to have the train under control, that it might be promptly stopped if it should become necessary. The defendant then avers, that the plaintiff utterly failed to have its train properly equipped so that it might he easily controlled, whereby it could have avoided said collision, but that it utterly failed to use proper care and diligence, and to stop its train, from which the collision occurred ; and the defendant further says that, if it had not been for such negligence and want of ordinary care on the part of the plaintiff, the collision would not have occurred, and that the defendant could not, after becoming aware of the said negligence and want of proper care on the part of the said plaintiff, avoid the consequences thereof and avert the collision. The fifth plea differs from the fourth in omitting the averment that the defendant had been, with the knowledge and acquiescence and without objection on the part of the plaintiff, habitually operating its road over the crossing at the said station, and that the provisions and requirements of the agreement between the parties, to be done and performed on the part of the defendant, were entirely ignored and dispensed — 440 — with hy the plaintiff; hut does aver that when the defendant’s train approached the crossing on the 6th day of June, 1890,. it gave due notice of its approach hy whistling, which was heard hy the conductor and engineer of the plaintiff’s train ; and then avers that the accident was caused by the negligence of the plaintiff, who, with full knowledge of the existing situation, attempted to cross without proper appliances for controlling its train, and that the accident was wholly due to the negligence and want of ordinary care on the part of the plaintiff, and could not have been avoided by the exercise of ordinary care and diligence on the part of the defendant. The plaintiff moved the court to reject the pleas offered by the defendant, and, as we have seen, the court properly rejected the pleas numbered 1 and 6. It permitted Plea No. 4 to he filed, and its ruling rejecting Pleas Nos. 2, 3, and 5 are the subject of the plaintiff in error’s second assignment of error. The defendant tendered Pleas Nos. 7, 8, 9, 10, and 11, to all of which the plaintiff objected, but the court overruled the objections to the pleas numbered 7, 8, 9, and 10, and sustained the objection to Plea No. 11, and this action of the court constitutes the third assignment of error. The eighth and ninth assignments of error are based upon the ruling of the court with respect to the instructions asked on behalf of the plaintiff and defendant. The tenth assignment of error is to the refusal of the court to set aside the verdict and give the defendant a new trial upon the grounds set out in the plaintiff’s Bill of Exception No. 17. All of these assignments of error can be treated together. We are of opinion that the plaintiff in error cannot be considered as'a trespasser. We cannot understand how the defendant in error can sne in an action of covenant, setting out the contract between itself and the plaintiff in error, and — 441 — at the same time undertake to hold it liable as a wrong-doer. When it brought suit to recover damages for the injury sustained, it might have sued in trespass on the case, and if the plaintiff in error had sought to set up the agreement of August 1, 1889, in order to establish contract relations with the defendant in error, there might have been room for the contention that the contract had not been complied with upon the part of the plaintiff in error, and that a performance of it on its part constituted a condition precedent to the acquisition of any rights under it; but here the defendant in error occupies, or rather attempts to occupy, a most anomalous position. It sues in covenant upon a contract under seal, and yet seeks to impose upon the defendant a liability upon terms wholly unknown in the enforcement of contracts. The covenant between the parties gave to the plaintiff in error the right to cross the track of the defendant in error upon certain terms and conditions, that is, after it had done certain things specifically set out in the contract. The failure to do those things constitutes a cause of action against the plaintiff in error, but does not constitute it a trespasser. But for that contract, the plaintiff in error would have been either a licensee or trespasser—a licensee if it crossed the road of the defendant in error by its assent, expressed, or implied from its acquiescence; a trespasser if it undertook to use the property of the defendant in error without its assent, expressed, or implied from its acquiescence. In the absence of the contract, the question would have been, in case of injury, what constituted negligence on the part of the plaintiff in error, and what degree of duty, if any, the defendant in error owed to it. By the contract the parties have themselves stipulated what the duty of the Norfolk and Carolina Eailroad Company should be, what things it was to do, and wbat things it was to omit to do, and, if loss occurred by reason of any acts of omission or commission embraced within its cove — 442 — nant, its liability to make good that loss to the Suffolk Lumber Company was fixed by the covenant. To this covenant, therefore, we must look in order to ascertain the respective duties and liabilities of the parties to it. It will be observed that it is expressly stipulated in the covenant “ that justice to the interests of the party of the first part demands that proper guaranty of indemnity should be given for all losses, injuries, or damages which it may sustain by reason of such crossings, and their employment by the said party of the second part, which do not result from any negligence upon the part of the agents and employees of the said party of the first part.” In the tenth clause the plaintiff in error binds itself to “ fully indemnify the party of the first part against any proper claims for loss, injury, or damage, which it may sustain by accidents, collisions, delays, or hindrances, or any other cause arising from or growing out of the acts or omissions of the agents or employees of the said party of the second part, in the construction, use, or employment of said crossings.” The construction of this language seems to be free from difficulty. By it the plaintiff in error covenanted to be responsible for all losses sustained by the defendant in error which were the ordinary and probable consequences of its omission to comply with the terms of its covenant. In other words, it is responsible for all injuries sustained where its acts of omission or commission, which it stipulated in its covenant to perform or refrain from, were the proximate cause of the injury inflicted. But where the conduct of the plaintiff in error was not the proximate, but only the remote cause or condition of the accident, and where the acts of the defendant in error, or its omissions of ordinary care, constituted the immediate or proximate cause of the injury which it sustained, then the wrong was self inflicted, and it cannot recover. — 443 — To hold that the defendant in error was only responsible for gross negligence, or wilful negligence, would be a proposition only tenable if the plaintiff in error is to be treated as a mere trespasser, and then only in the event that its attitude or position as a trespasser was not discovered in time to enable the defendant in error to avoid the consequences of the trespasser’s misconduct in time, by ordinary care, to avert its consequences. For these reasons we think that there was no error in the. judgment of the Corporation Court in refusing to strike out Plea No. 4, but that there was error in striking out Pleas Nos. 2, 3, and 5, and .also in striking, out the defendant’s Plea No. 11 to the first count of the plaintiff’s declaration. It follows also from what has been said that Instructions Nos. 2, 3, and 4, offered by the defendant in error, should have been rejected. We see no error in Instructions Nos. 5, 6, and 7, as given by the court. Another ground of error alleged is to the admission by the court of a letter from W. H. Jackson, president of the Suffolk Lumber Company, enclosing an itemized bill of expenses incurred on account of the two wrecks. The letter is unsigned, and merely sets forth the various items of damage and loss alleged to have been sustained by the defendant in error. We do not see that the admission of this letter could by possibility have injured the plaintiff in error. This objection is therefore overruled. Objection was taken to a statement made by Frank Gr. Whaley, who was asked by the defendant in error, “ Please state if you had any conversation with Mr. Hart, conductor on the Norfolk and Carolina train, after that accident, and when, and where, and what occurred ? ” It appears that the conversation or statement sought to be elicited by this question took place an hour after the accident happened; that it — 444 — constituted no part of the res gestee; that it could not he considered as an admission made by an agent of the plaintiff in error, and we think that it was properly excluded. Exception was taken to the ruling of the court in permitting the following question to be asked : “ Mr. Cannon, if there had been any signal-post with signals and a watchman, as the contract requires, and as is now there, could there have been any accident on that occasion ? ” To this the witness replied, “ I think not.” The plaintiff in error excepted to the ruling of the court in allowing this question to be asked, upon the ground that it called for an expression of a mere opinion upon the part of the witness. "We think the objection well taken, and that it should have been sustained. Objection was also made to the action of the court in permitting the defendant in error to ask a witness, one John R. Gillis, the following question : “ State whether or not, after that accident occurred, you walked over that crossing with Mr. Wrightson, a conductor of the Norfolk and Carolina railroad, and, if so, state what conversation occurred between you on that occasion in regard to this matter”; to which question the defendant by counsel objected, and asked "the witness how long after the accident occurred before that conversation took place, to which witness replied : “I judge probably twenty minutes or half an hour—something like that; I cannot state positively what time it was, but the accident was entirely over, and we were walking up to the station.” The court overruled the objection, witness answered, and the answer is material. We think, however, that both question and answer should have been excluded, for the reasons already given with respect to the questions propounded to Frank G. Whaley. See Va. & Tenn. R. R. v. Sayers, 26 Gratt. 328; Vicksburg & Meridian R. R. Co. v. O’Brien, 119 U. S. 99; Jammison v. C. & O. Ry. Co., decided at the present term, ante p. 327; and Cray v. Commonwealth, post, and 22 S. E. Rep. — 445 — For these reasons we think the judgment of the Corporation Court is, in the several particulars mentioned, erroneous; that it should be reversed, the verdict set aside, and a new trial had in accordance with the views expressed in this opinion. Reversed.