Chesapeake & Ohio Railway Co. v. Paris' Administrator

Keith, P., delivered the opinion of the court. This is the second time this case has been before this court. In the opinion upon the former writ of error, the circumstances under which the death of the plaintiff’s decedent occurred, as they then appeared from the record are stated, and upon the case then made it was held that-the verdict of the jury against the railway company could not be sustained, and the cause was remanded for a new trial. See 107 Va. 408-411, 59 S. E. 398. Upon the next trial there was a demurrer to the evidence and judgment for the plaintiff again. To that judgment this writ of error was awarded. The duty of a railway company to a person who, in conformity to a custom acquiesced in by the carrier, goes to a railway station to assist a passenger in entering or leaving the train is declared. It was held that such a person is an invitee to whom the carrier owes the duty of ordinary care to see that he is not injured, and that, if he enters the train and his purpose is known, it is the duty of the carrier to give him a reasonable time within which to leave it, but if his purpose is not known and there are no circumstances to put the carrier upon notice, then the carrier is not bound to hold the train till he has had time to alight, or to notify him before the train starts. Upon the former writ it was not shown that the railway company had notice that the deceased was merely assisting — 44 — his daughter on the train when he entered the car. The want of such notice, direct or circumstantial, was held on the former writ to relieve the railway company from the charge of negligence in starting its train before the plaintiff’s decedent had gotten off. Upon the last trial, on this point the case was different. Tavo witnesses testified that the plaintiff’s decedent, when he entered the car, inquired of a brakeman if he would have time to take his daughter’s dress-suit case into the car, set it down and get off before the train started, and was told that he would, to “go ahead.” That it had such notice, or that there Avas any such inquiry made, is denied by the railway company, and the preponderance of eAndence, direct and circumstantial, is in faAmr of its contention; but on a demurrer to evidence the testimony of the two witnesses to the contrary must be taken as true. The evidence of the plaintiff tended further to prove that the deceased, when he assisted his daughter upon the train, found her a seat about the middle of the car, placed the dress-suit case on the seat Avith her, told her good-bye, and started to leaiw the train, but was delayed in getting off because of the crowded condition of the car and the narrow passage through which he had to or did pass in making his way to the platform of the car; that when he reached the platform it was crowded, and persons were still getting on the train Avith bundles; that he asked the brakeman not to start the train until he could get off; that he was diligent in his effort to get off; that the day of the accident was Saturday before Christmas, Avhich came on Monday; that the train was a local train, crowded when it reached Staunton, manjr of Avhose passengers Avere getting off, and that a large crowd there boarded the train; that the train’s usual stop at that .station was five minutes, and that it only stopped the usual time that day; that although the train Avas moving slowly when the deceased got on the steps to alight, he could have done so successfully but for the interference of a brake — 45 — rúan, who grabbed him and then let him go, unbalancing him and thus preventing him from alighting safely. Upon" all material points the evidence of the railway company is directly in conflict with that of the plaintiff, and upon most of them preponderates. While upon the whole evidence the jury, as it seems to us, ought to have found a verdict for the defendant, vet as the evidence was conflicting the verdict of the jury cannot be interfered with, if there was sufficient evidence to sustain it. We do not think the act of the brakeman, as testified to by the plaintiff’s witnesses, makes out a case of negligence against the railway company. As was said in the opinion of the court on the former writ of error, it was the brakeman’s duty to have attempted to protect the plaintiff’s intestate from damage incident to his stepping off a moving train, and if perchance disaster attended his efforts in that regard, the master cannot be held answerable in damages for the fortuitous result. The case made by the evidence, it may be conceded, shows that the railway company was negligent in failing to give Paris a reasonable time within which to leave the train. The fact remains, however, that in attempting to alight from a moving train he was the author of his own wrong. Negligence, whether contributory or otherwise, is a mixed question of law and fact. If the facts be doubtful, or about which reasonable men may differ, their determination becomes a question for the jury; but where the facts are undisputed, the law applicable to them is a question for the court. The decided cases with reference to alighting from moving ■trains are almost without number. Many of them deal with passengers alighting from street cars, and it is almost universally held that to alight from a slowly moving street car is not negligence per se. Where a passenger is invited to alight by an officer of the train, or is told that he may do so in safety, the cases hold that circumstance to justify his ac — 46 — tion, provided the train has not attained such a speed that the danger would be obvious. If he is induced to leap from the train by a well founded apprehension of peril to life or limb, induced by occurences which might have been guarded against by the utmost care of the carrier, he is entitled to recover for any injury he may have sustained thereby, although no injury would have occurred if he had remained quiet; and we admit that there are cases which have held the carrier responsible where there was no invitation extended, no assurance given, and no peril apprehended. But we are of opinion that the just and proper rule of decision is that which we understand to prevail in this State. In Richmond & Danville R. Co. v. Morris, 31 Gratt. 200, it appears that it was night when the train arrived at the station B.; that Morris had fallen asleep, and when approaching the station the conductor awakened him, telling him that they were at B. The train went a short distance beyond the freight house and reception room without stopping, arid when the engine reached the frog on the west side of the freight house and reception room it stopped, and the conductor seeing Morris still in the caboose asleep, again aroused him. The train stopped about a minute, and Morris could then have gotten off whilst the train was not in motion. The conductor then went to the other end of the car, and looking back saw that Morris did not get up. He returned, shook Morris and told him to get up, or get off, he was at B. Immediately after waking Morris the last time, the conductor went out at the end of the caboose with his lantern in his hand and stood on the stationary platform about two and a half feet from the platform of the car; the train commenced backing, and Morris got up and walked out to the end of the car and jumped off, not knowing, as he said, which way the car was going, and the caboose car and several others passed over him, injuring him severely. The point where Morris jumped off was opposite the platform, which extended thirty-five steps — 47 — west, and a much greater distance east of the pump-house, and' was that part of the platform at which passengers going east got off, and was in good condition. It was a dark, drizzly-night, and the only lights at the station were two lanterns,, one in the hands of the conductor and the other in the hands of a servant of the company at the station. Upon these facts this court held, that “the company was guilty of culpable negligence, and this negligence ivas the proximate cause of Morris’ injury; that the conductor should not have put the train in motion until Morris could leave the car, or, if put in motion, he should have cautioned him not to attempt to get off until the train was stopped. Instead of this he told him to. get off, and the train immediately commenced backing. The company was also in fault in not having stationary lights at the place, and this made it all the more incumbent on the conductor to exercise more than usual care and caution in letting off passengers. But whilst the injury sustained by M. is directly traceable to the culpable negligence of the company, the negligence or absence of ordinary prudence and caution on the part of M. contributed to his injury; and he is-not entitled to recover of the company damages for the injury he sustained. One who by his negligence has brought an injury upon himself, cannot recover damages for it. Such is the rule of the civil and common law. A plaintiff in such cases is entitled to no relief.” It is obvious, we think, that the case just cited was a far stronger one in behalf of the passenger than the one under consideration. The court rightly characterized the conduct of the conductor as culpable negligence, and held that this negligence was the proximate cause of the injury to Morris; but Morris was in a place of safety, and in attempting to alight from a moving car was held to have brought the injury upon himself, and was therefore not entitled to relief. Judge-Burks, who delivered the opinion of a unanimous court, cites the case of Railroad Co. v. Aspell, 23 Pa. St. 147, 62 Am. Dec. — 48 — 323, and quotes with approval the following language of Chief Justice Black: “It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury by the mutual fault of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured . concurring with that of the other party, ho action can be main.tained. A railroad company is not liable for an accident which the passenger might have prevented by ordinary attention to his safety, even though the agents in the train are also remiss in their duty. . . . From these principles it follows very clearly that if a passenger is negligently carried beyond the .station where he intended to stop and where he had a right to be let off, he can recover compensation for the inconvenience, the loss of time, and the labor of travelling back; because these are the direct consequences of the wrong done to him. But if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk; because this is gross negligence, for which he can blame nobody but himself. If there be any man who does not know that, such leaps are dangerous, especially when taken in the dark, his friends should see that he does not travel on a railroad.” Continuing, Judge Burks says further: “It is to be borne in mind, however, that if a passenger is induced to leap from the carriage, whether by coach or railway, by a well founded apprehension of peril to life or limb, induced by occurrences which might have been guarded against by the utmost care of the carriers, he is entitled to recover for any injury he may -sustain thereby, although no injury would have occurred if he had remained quiet.” In Jammison v. Chesapeake & O. R. Co., 92 Va. 327, 23 S. E. 758, 53 Am. St. Rep. 813, it was held, that if a passenger train fails to stop at a station to which a pas■senger has purchased a ticket, it is the duty of the passenger to retain his seat until he arrives at the next station — 49 — at which the train stops; and, if he feels aggrieved, to institute his action against the company for any loss or injury he may have sustained by reason of the failure to stop the train at the proper station. But if he fails to do this, and, in passing from one coach to another in seach of the conductor to get him to stop the train, he is thrown from the train and injured, his negligence is the proximate cause of the injury, and he cannot recover damages of the company therefor.” The person injured in this case was upon the train where he had the right to be as an invitee. He was in a place of safety. Had he elected to remain upon the train, his right of action was complete for whatever inconvenience he had suffered, or-might suffer, as the direct consequence of the railroad company’s negligence. But when he undertook to alight from the train, the negligence of the railroad company had ceased' to operate, and it was the voluntary act of Paris which became the "proximate cause of his injury. As was said by this court in C. & O. Ry. Co. v. Wills, 68 S. E. 395, ante, “the direct and efficient cause of the-injury for which this suit was brought was the alighting from the train while in motion. In that act the railroad company had no part.” If it were conceded that Paris was not guilty of negligence in alighting from the train, we do not perceive that his case would be strengthened, for his act of alighting was the proximate cause of the injury. In order to recover he must show negligence upon the part of the railroad company as the proximate cause of the injury for which he sues. He cannot recover merely because he was not guilty of a negligent act; and in this cáse the negligence of the railroad company had ceased to operate — was exhausted — and his alighting from the train, whether under conditions that convict him of negligence or not is immaterial. If the act of the railroad was a mere condition and not the proximate and efficient cause of the injury, and if Paris in alighting from the train, under the cir — 50 — ■cumstances disclosed in this record, was free from fault and .guilty of no negligence, then the occurrence must be classed • as an accident for which there can be no recovery. It has often been held that the act of a responsible agent, ■intervening between the negligence of the railway company and the injury sued for, relieves the railway company of responsibility. If the intervening act of a third person has •that effect, how much more where the person injured was .himself the author of his own wrong. But it is said that if this view prevail, and a person injured while leaving a moving train under circumstances similar to those under consideration is denied the right to recover for such injury, and is left to compensation for damages for the .inconvenience, loss of time and the labor of travelling back, -which are the direct consequences of the act of. the railroad • company, the recovery in many instances would , not ade- ■ quately redress the wrong suffered. To this we reply that experience does not warrant the apprehension that courts and juries may not safely be trusted to do full justice to the citizen in such controversies; and that, even if this -were not -o. the difficulty or the inability to obtain full compensation for -an admitted wrong cannot be made the basis for a recovery ¿against a railroad company in excess of just compensation for the injury which its negligence had occasioned, measured by ■the ascertained and established rules of law in such cases. There is another view, which we think is not without •merit. Where an injury is inflicted by a negligent act, it is the duty of the party injured by reasonable care to diminish the consequences of the wrong he has suffered, in the interest ■of the wrongdoer. This is not merely good law but good morals, and flows from that rule which has the highest possible sanction, that we should do unto others as we would have ■others do unto us. Where a passenger has been wrongfully carried beyond his .-station, or has not been given a reasonable time to leave a — 51 — train, this principle requires him to submit for the time to the situation, secure in his right ultimately to recover for the inconvenience he may suffer, but forbids him to step from a moving train, thereby imperiling his life and limb, and then turn around and engraft the consequences of his own rash act upon the antecedent negligence of the railroad and recover for both. For a full discussion of the doctrine of remote and proximate cause, we refer to C. & O. Ry. Co. v. Wills, supra, and the authorities there cited. As was said in that case, there is no evidence that any agent of the company directed, advised, encouraged, or even had knowledge of the intention of plaintiff’s intestate to alight from the train, except the brakeman, whose conduct was held not to fix negligence upon the railroad company. There was in this case, as in that, the intervening act of a responsible agent, that agent being the plaintiff’s intestate himself; and while the railroad company was guilty of negligence in not giving a sufficient time for Paris to alight from the train, it cannot be said that the injury for which he sues was the natural and continuous sequence, unbroken by any new and independent cause, of that negligent act. For these reasons we are of opinion that the judgment of the circuit court should be reversed, and this court will proceed to enter such judgment as the circuit court ought to have rendered.