Roaring Fork Railroad v. Ledford's Administrator

SIMS, J., after making the foregoing statement, delivered the following opinion of the court: [1] 1. It is plain from the statement of facts preceding this opinion that this is a case in which the deceased was guilty of gross negligence, which would bar any recovery by the plaintiff unless the doctrine of the last clear chance is applicable. 2. On the question of whether such doctrine is or is not applicable to the case, we have the following to consider. [2-4] The deceased occupied toward the defendant the relationship of a licensee. It is well settled, therefore, that however great may have been the negligence of the deceased, the defendant owed to him, under the humane doc-trine of the last clear chance, the duty, through its engine-man and fireman, to exercise ordinary care to avoid injuring him on the track after, by the exercise of ordinary care, they or either of them should have perceived his peril and that he was obviously unconscious of it, if that is a circumstance in the case. That is to say, the defendant owed to the deceased the duty of keeping a reasonable lookout ahead of the moving engine to observe whether any person, such as deceased, who might be reasonably expected by defendant to be on the track in the locality in question was thereon in a position or condition of obvious unconsciousness of his peril, in order that those in charge of the engine might then discharge the further duty imposed by the doctrine under consideration of doing all that they could, consistently with their higher duty to others, to stop the train so as to — 108 — save the deceased from the consequence of his own action. For the last-named duty arises not alone upon the actual discovery of such position and condition of such a person, but also when by the exercise of ordinary care by the engineman or fireman in keeping a reasonable lookout along the track such position and condition would have been discovered in time to have avoided the accident. So. Ry. Co. v. Bailey, 110 Va. 833, 67 S. E. 365, 27 L. R. A. (N. S.) 379; Kabler’s Adm’r v. So. Ry. Co., 121 Va. 90, 92 S. E. 815, and other Virginia cases therein cited. This statement of the law is too well settled to admit of controversy, and it is not controverted by argument before us in the case. [5] Such duty of lookout along the track in front of a moving train or engine extends, of course, and applies to a sufficient radius or distance ahead to enable the engine-man to stop the train or engine by the exercise of reasonable care and diligence by the application of the brakes, or otherwise, should he observe such a person on the track in the position and condition aforesaid. It is manifest that it cannot be discharged by the engineman looking ahead a fourth of a mile away and his thereafter never looking again along the track in a given locality, and by the engine-man contenting himself with supposing that any person whom he may have seen on the track a fourth of a mile away will get off the track before the engine reaches him; for if this were true, the last clear chance doctrine would be wholly abrogated in so far as it imposes the duty aforesaid in the keeping of a reasonable lookout. The evidence for the plaintiff, and indeed the testimony of the engineman himself would have warranted the jury in finding that after seeing the deceased and Estep on the track a fourth of a mile away the engineman did not look — 109 — again along the track upon which the engine was running until after the deceased was struck and killed, but contented himself with supposing the deceased had gotten off the track before the engine reached him. [6] 3. The crucial question in the case before us, therefore, is this: was the deceased in a position and condition of obvious unconsciousness of his peril, on the track as far ahead of the moving engine as the radius or distance aforesaid, which position and condition would have been apparent to the engineman had he discharged the duty of lookout aforesaid? According to the testimony in the record, which is mentioned in the statement preceding this opinion, Estep is the only witness who saw the deceased when he was at a distance from the approaching engine of fifty to seventy-five feet, and this was the next time that the deceased was seen by any one after he was observed by the engineman about 400 yards or 1,200 feet away. There is no evidence in the record that, when the engineman saw the deceased 1,200 feet away, the attitude of the deceased was that of one unconscious of his peril. But the situation was different when the deceased was next seen by Estep. At this time the position and condition of the deceased was unquestionably one of obvious unconsciousness of peril. It so impressed Estep the moment he saw deceased, and it cannot be doubted it would have so impressed the engineman could the latter have seen and had he seen the deceased at that time. Moreover, by reference to the diagram above and the testimony above mentioned, it will be observed that the deceased was then on the railroad track walking towards the approaching engine, with his face turned away from the engine, looking intently and continuously back at Minor, who was at work putting a truss-rod in one corner of the flat car, — 110 — which was standing on the temporary track, alongside and a few feet to the west of the main-line railroad track. Allowing for some movement of the deceased between that time and the later time at which Minor first saw the deceased (when the engine was “in eight or nine feet of him” and he was about “eighteen feet” north of Minor), but considering the relative speed of the engine and the deceased more favorably to the defendant than the defendant is entitled to have it considered under the statutory rule on the subject, the deceased must, at the time Estep saw him in peril, have passed Minor at least sixteen or seventeen feet and 'must have been looking back over his shoulder at Minor at work. The relative positions of the engine, the deceased and Minor make it evident that no one could have •perceived the deceased under those circumstances and not have seen that his position and condition was one of obvious unconsciousness of his peril. There was presented not merely a man on the track walking towards an approaching engine in broad daylight with no obstruction to his view, apparently (as he was indeed actually) in possession of all of his faculties, but the added circumstances of work going on behind him beside the track, of that work having obviously attracted his attention and of his looking backward entirely away from his line of vision of the approaching engine and of his looking thus intently and continuously, not intermittently, as he walked. It is true that it seems most probable from the evidence that the view of the engineman of the deceased at the time just mentioned was obstructed by the tender of the engine, so that the engineman could not then have seen the deceased had he looked along the track. And it is also true that the engine was then too close to the deceased for it to have been possible for it to have been stopped in time to have avoided — 111 — •the accident. But how long had this position and condition of the deceased previously existed? Did it exist when the engine was an ample distance away from the deceased for the engineman to have observed it, had he kept the lookout which the law requires, and for him thereafter to have applied the brakes and have stopped the engine before it reached the deceased, had reasonable expedition been exercised in the premises ? On the last-stated question the evidence is wholly circumstantial. The direct evidence, however, shows that the' same cause, namely, the work on the fiat car, which occasioned the attitude of the deceased, aforesaid, at the time he was seen by the eye-witness, Estep, had previously existed. And the further fact is shown by direct evidence that the deceased took as long to go about sixty feet or twenty yards as Estep did to go about 100 feet or thirty-three and one-third yards, and hence 1 hat the deceased was delayed for a time, thus measured as he proceeded along the main-line track by some cause or causes. Even in a criminal case the evidence to establish a fact need exclude only every reasonable doubt arising from a consideration of the evidence. Every other possible hypothesis does not have to be excluded before a fact in issue can be taken as proved, but only such other hypotheses as are consistent with the evidence in the case. It is possible, of course, that some other cause may have contributed to the delay of the deceased, but the evidence in the case points only to one cause, namely, the deceased having become absorbed in observing the work on the flat car, aforesaid. And comparing the progress of the deceased with that of the train and of Estep, the direct evidence discloses what was the length of that delay, namely, only for about twenty-five, thirty-seven and one-half or fifty seconds, dependent upon whether the speed — 112 — of the engine in traversing the distance of about 1,100 feet to the point of the accident was thirty or twenty or fifteen miles- an hour. In view of the evidence in the case, it is not reasonable to infer that any of that delay was occasioned while the deceased was south of the flat car, as he could have then looked directly at Minor at work while he walked without delaying his progress. It was not until the deceased passed, the point on the track opposite where Minor was at work that the progress of deceased would have been retarded by his looking back at Minor. The deceased having walked to the point without delay, measuring his progress by that of Estep as shown by the evidence, the engine would then have been at least about 550 feet away from the deceased, whatever was the speed of the engine, since the engine would have traversed about half the distance (of about 1,200 feet) it was away when the deceased and Estep first got on the main-line track, less about fifty feet the distance the deceased had gone up to this time. That would have left the engine about twelve and one-half oi eighteen and three-fourths, or twenty-five seconds of time, in which to traverse such 550 feet, less the part of it the deceased himself traveled before he was struck, dependent upon the speed of the engine being thirty or twenty or fifteen miles an hour. Now, at thirty miles an hour, the engine would have gone about 550 feet in twelve and onebalf seconds, or the same distance in eighteen and three-fourths seconds at twenty miles an hour, or in twenty-five seconds at fifteen miles an hour. This calculation, when considered along with the physical facts and other circumstances shown in evidence, demonstrates that the ¿jury might properly have found from the evidence that the engine was gomg about eighteen and three-fourths miles an hour before the brakes were applied, and that Estep’s prog — 113 — ress was at the rate of about one-sixth as fast or of about three miles per hour. From the foregoing facte the inference is irresistable that the deceased had passed Minor and was in the attitude aforesaid of looking back over his shoulder at Minor at work on the flat car when the engine was still about 550 feet away from him and when, according to the testimony of the fireman, the engine could have been stopped within ninety to 120 feet, and according to the testimony of the engineman, within 150 feet “or something like that;” and when, according to the testimony for plaintiff, by Estep, the engine was in fact stopped, after the brakes were applied, within “probably a hundred, maybe two hundred feet.” This gave the engineman ample time under the circumstances, he having no other duties, as is shown by the evidence, which interfered therewith, for the observation of the position and condition of obvious unconsciousness of peril of the deceased 550 feet away, had he discharged the duty of lookout, aforesaid; and for the co-ordination of his mind with his muscles, and for the application of the emergency brakes (which is but an instantaneous operation of itself), in time to have stopped' the engine before it reached the deceased. We are, therefore, of opinion that the last clear chance doctrine is applicable to the case and is controlling in favor of the action of the trial court in overruling the demurrer to evidence and in entering the judgment under review. It is claimed for the defendant, however, that it is incredible and not reasonable to be believed that the deceased had continued for such a preceding time to walk in the position in which Estep saw him, as aforesaid. That the deceased must have looked in the direction in which he was walking at frequent intervals and so must have seen the approaching engine at the time or before he was within the radius — 114 — or distance away from the engine, aforesaid, or must have appeared to the engineman to have done so had the latter then .kept a lookout along the track. Estep testifies that the deceased did in fact walk in that position without changing his attitude while Estep looked upon him just before the accident. Minor also testifies that he saw the deceased “walking very slowly” in that position, without changing his attitude just before the accident. If the jury had credited that testimony, which it was within their province to do, it is just as credible that the deceased had been walking for the next preceding period of time in question in practically the same attitude. The same cause therefor being in existence, as shown by the evidence, during such preceding time, there is nothing incredible or unreasonable in the inference that the same effect was produced thereby during such time. And whether one could thus walk would depend in great measure on the smoothness of the way. We -cannot assume in the absence of evidence on the subject rthat the way between the ties of the track in the locality in ■question was not filled in with ballast of some kind. There is no such evidence in the case and the fact that the deceased did so walk for a time, as the direct evidence establishes, negatives the inference sought to be drawn by the ■defendant that it was impractichble for the deceased to have so walked for a preceding time. It is contended for defendant that there is no evidence that the deceased had been looking away from the track until he reached the point where Estep saw him, within fifty or seventy-five feet of the engine. This position ignores the testimony of Minor that the deceased was looking at him at work, as aforesaid, and it ignores the location of the flat car and of the position on it of the work that Minor was doing, which attracted the attention of the deceased, and that the deceased must have passed the point opposite — 115 — Minor before the looking at the latter would have retarded the progress of the deceased, and it ignores the other circumstances established by the direct and circumstantial evidence in the case above adverted to. The circumstance that the deceased became confused when he at length discovered the approach of the engine when it was within eight or nine feet of him, and that he then, in his fright, made the error of not springing from the track next to the flat car, cannot relieve the defendant from liability for its negligence, aforesaid, for two reasons: first, because the evidence does not show that if the deceased had continued his first movement to the west he would have escaped, and, secondly, because that conduct of the deceased was but a result reasonably to be expected of one in his perilous position at the time when the negligence of the defendant occurred, from the result of all of which he would have been saved by the discharge of its duty, aforesaid, by the defendant under the last clear chance doctrine. It should be further observed that nothing which is said above leads to the conclusion, as is contended for defendant would be the result of such a holding, that a railroad company in the operation of its trains needs to slow down their lawful speed or that the operation of its trains will be in any manner delayed, except where the perilous position and condition of a licensee on the track exists and is or would be obvious to the engineman or fireman in the exercise of ordinary care in the performance of their duties, among which is the duty of keeping the reasonable lookout aforesaid. Then, as is said in So. Ry. Co. v. Bailey, supra (110 Va. 833, 67 S. E. 365, 27 L. R. A. (N. S.) 379), “it becomes the duty of those in charge of the train to do all they can consistent with their higher duty to others, to save him” (the licensee) “from the consequences of his own act,” but not until then. — 116 — For the foregoing reasons, the judgment under review must be affirmed. Affirmed.