Southern Railway Co. v. Daves

Harrison, J., delivered the opinion of the court. On the 19th of February, 1906, an engineer and fireman of the defendant railway company left Lawrenceville, on the main line of the company’s road, with an engine and caboose, for Jeffress, on the same line, to get a train of cars standing at the latter point. The engine was moving backwards, with the tender in front and the caboose car behind. As the engine approached the public crossing at Union Level, a station on the road, the engineer and fireman saw two negro children, one nearly eight and the other nearly ten years of age, about one hundred and fifty yards from the crossing, and running rapidly in that direction. The children were not again seen by those in charge of the engine until within a few feet of the crossing, when they were discovered springing on the track immediately in front of the moving engine. The older child succeeded in clearing the track, but the younger was caught and severely injured. This action was brought by the injured child, suing by her father and next friend, to recover damages for the injuries sustained by her, which it is alleged were inflicted through the negligence of the defendant railway company. The trial in the circuit court resulted in a verdict and judgment in favor of the plaintiff, and thereupon this writ of error was awarded the defendant company. The defendant asked for five instructions, all of which were refused. Of these instructions, Eos. 1, 2 and 3 were properly refused, because the propositions of law sought to be thereby announced were fully covered by the instructions given for the plaintiff. Instruction Eo. 5 was also properly refused, [384] because it was involved and the meaning so obscure that it was well calculated to confuse and mislead the jury. We are of opinion that it was error to refuse instruction Ho. 4, asked for by the defendant. That instruction was as follows: “The court instructs the jury, that it is not the duty of the engineer of a railroad train to stop when he sees a person approaching the track. He has the right to assume that the person will stop and not go upon the track in front of a moving train in plain view; and, unless there is something to show the engineer that the person approaching is not going to stop, the engineer owes no duty to stop the train.” It is conceded that this instruction correctly states the law in the case of an adult plaintiff of average intelligence, but it is insisted that it is not the law where the plaintiff is an irresponsible child. The instruction in question was not dealing with the contributory negligence of the plaintiff; that subject had been fully covered in the instructions given for the plaintiff. • Instruction Ho. 4 was dealing solely with the alleged negligence of the defendant company in approaching the crossing. In Shearman & Redfield on Heg., sec. 463, it is said: “If the engineer sees persons or teams approaching or waiting to cross the railroad, he is not bound to anticipate that they will attempt to cross in view of the train; and, therefore, he is not usually required to check his speed so much as would be necessary to enable them to cross in front of him.” That a person approaching a railroad crossing will stop and not go upon the railroad track immediately in front of a moving engine in plain view, is a presumption that arises in the case of a child eight years old, running along the public road, as well as in the case of an adult, provided there is nothing in the situation to put a reasonably prudent man on his guard to use extraordinary care to avoid a collision. There must be something in the situation or appearance of things to suggest that [385] the child is not going to stop, otherwise the failure of the engineer to stop the train is not negligence. In other words, the railroad company cannot he held liable for the failure of its engineer to anticipate that a person, whether infant or adult, approaching a crossing, is going to step upon the track immediately in front of a moving engine, unless there is something to suggest to the engineer that such person does not intend to remain in a place of safety until the train has passed. If if were the duty of a railroad company to stop its trains whenever it saw children running in the direction of a public crossing, the public service would be reduced to a wholly inadequate degree of efficiency. In the case at bar, the engineer and fireman both testify that when the plaintiff was seen by them running along the public road in the direction of the crossing, it never occurred to either of them that her purpose was to attempt to cross the track in advance of the engine; that it was a common thing — an everyday experience — to see children running to á passing train; and that such occurrences never suggested the idea that the children were going to put themselves in a position of danger. After the children were seen the first time, they were not observed again by the engineer and fireman until they were seen jumping on the track not more than four feet in front of the moving engine, when it was too late to do anything to avert the accident. The plaintiff asked for nine instructions, all of which were given, over the protest of the defendant. Instruction “C,” given for the plaintiff, was as follows: “The court instructs the jury, that it is the duty of a railroad, when running an engine or train backward, to use special precaution to avoid injury to persons using the public highway crossing the railroad track, such as ringing the bell, sounding the whistle, and having a lookout on the tender, or that portion of the train which is in front, and the failure of said railroad to use such special precaution is such negligence as wil'1 render [386] it liable in damages for any injuries inflicted upon any one so using tbe highway, as aforesaid, unless such person was guilty of contributory negligence.” It has been held by this court that it is the duty of a railroad company to have a lookout on the leading car of a train backing over a crossing in a frequented street; and that under such circumstances ringing the bell and sounding the whistle was not sufficient. Marks v. Petersburg R. Co., 88 Va. 1, 13 S. E. 299. The circumstances» of the case at bar are wholly different. There was only an engine running backward with nothing in front of the engineer but the tender. The crossing approached was practically in the open country, only three or four houses about the station, with nothing' to obstruct the view of the traveler on the highway, or the view of the engineer. A lookout on the tender could only have seen what the engineer saw — the children running toward the track; and it is difficult to understand how such a lookout would have been able to fathom the mind of the children any more readily than the engineer did, and to have anticipated that they intended to rush into a position of peril. Whether it is negligence or not for the servants of a railroad company to run an engine backwards or push cars ahead of an engine without stationing some one on the tender, or foremost car, to signal its approach to a person who may be on the track, is a question which is controlled by the circumstances under which the engine or train is operated. Under some circumstances, the act has been held to be negligence as a matter of law, but in most cases it has been held to be a question of fact to be submitted to the jury. 23 Am. & Eng. Ency. of Law, 745. Instruction “C” tells the jury that it was the duty of the defendant to have a lookout on the tender, and that its failure to take the special precaution of having such lookout was negligence, rendering the company liable in damages to any one injured while using the highway who was not guilty of contribu [387] tory negligence. This was error. There was nothing in the facts and circumstances to justify the conclusion that as matter of law it was the duty of the defendant to have a lookout on the tender. This instruction is further erroneous, because it tells the jury that the failure to ring the bell and sound the whistle was negligence for which the defendant was liable. This is not true, unless the jury believed that there was a failure to ring the bell and sound the whistle, and further believed that such failure was the proximate cause of the accident. Instruction “D,” given for the plaintiff, is amenable to the same objection pointed out with respect to instruction “C,” and for similar reasons should have been refused. The remaining instructions, given for the plaintiff, appear to be without prejudice to the defendant company. In regular order, the demurrer to the declaration should have been first considered. It is only needful to say, that, tested by familiar principles, the declaration sufficiently states a cause of action, and the demurrer thereto was, therefore, properly overruled. Tor the error of the circuit court in refusing to give instruction Ho. 4, asked for by the defendant, and in giving instructions “O” and “D” for the plaintiff, the judgment complained of must be reversed, the verdict of the jury set aside, and a new trial granted. Reversed.