Chesapeake & Ohio Railway Co. v. Kidd

Harrison, J., delivered the opinion of the court. This action was brought to recover damages for injuries alleged to have been inflicted on the plaintiff as the result of the negligence of the defendant railway com [823] pany in operating what is styled in the record as a “pickup train,” at or near its Eagle Mountain station, in Botetourt county. The circuit court overruled the defendant’s demurrer to the plaintiff’s evidence, and gave judgment against the company for $5,COO, the amount ascertained by the jury to be the damage sustained by the plaintiff. This judgment we are asked to review and reverse. It appears that the plaintiff was an active, intelligent young man, twenty-four years of age, who lived at Eagle Mountain and was thoroughly familiar with the tracks and the uses made of them at that station, and had often seen the “pickup train” by which he was injured come in and do its shifting there. The accident occurred in the daytime while the plaintiff was standing on the end of the ties or just inside the rail of one of the defendant’s tracks, looking at the movements of trains and conversing with a passing acquaintance. While standing in this position, the “pickup train,” moving east, ran upon him and inflicted the injuries complained of. In the view we take of this case it is unnecessary to consider the question of the defendant’s negligence in failing to exercise reasonable care to discover the presence of the plaintiff on the track, and thereby to avoid injuring him, for if such negligence be conceded, it will not entitle the plaintiff to recover. In reaching the point of the accident the plaintiff had walked between tracks along the side of a west-bound train, and when he stopped he selected a railroad track to stand upon, although there was about him ample space where he would have been safe. 'After- taking his position on the track he did not look to the west, the direction from which the “pickup train” came, although the track upon which he stood was practically straight, with a clear view to the west of more than thirteen hun [824] dred feet. If he had looked he would have been obliged to see the train approaching, whereupon a single step would have been sufficient to put him beyond the reach of harm. No fact or cireumsthnce is brought home to the knowledge of those in charge of the defendant’s train, sufficient to put a reasonable man upon notice that the plaintiff was paying no heed to his danger and would take no step to secure his own safety. As this court said in Southern Railway Co. v. Bailey, 110 Va. 833, 843, 67 S. E. 365, “we are dealing here with a case where a plaintiff, who could, up to the moment of impact, have placed himself in a position of safety if he had exercised ordinary care to discover, the approaching train, is seeking to recover from the defendant company because, by the exercise of like care, it could have avoided inflicting the injury of which he complains; and the question is whether or not a plaintiff can recover of a defendant where they are equally guilty of the breach of an identical duty, the consequences of which continue to the moment of the injury.” At page 864 the court said: “If it be the duty of a person upon the track of a railway to keep a constant lookout (and of this there can be no question), and if it be the duty of the servants of the company in control of the train to exercise reasonable care to discover the presence of a person upon the track, and if in the exercise of such reasonable care the presence of such person would be discovered, and the person on the track is injured, and there be no other fact proved, then it is apparent that the case stated would be one of mutual and concurring negligence, and there could be no recovery. The duty was equal, and each is equally guilty of its breach. . . ” The doctrine so clearly enunciated in Bailey’s case is applicable to the facts of the case at bar, where the plaintiff, from the time he stepped upon the track to the [825] moment of the accident, failed to keep a constant or any lookout in the direction from which his danger not only might have come, but did actually come. It was plainly a case of mutual and concurring negligence in which there could be no recovery. The judgment complained of must he reversed, and this court taking such action as the circuit court should have taken, will sustain the demurrer to the evidence and give judgment in favor of the defendant railroad company. Reversed.