Chesapeake & Ohio Railway Co. v. Nixon

Sims, P., after maMng the foregoing statement, delivered the following opinion of the court: — 361 — The questions presented by the assignments of error will, so far as necessary for the decision of the case, be disposed of in their order as stated below. The chief question thus presented, in various ways (by the assignments that the trial court erred in overruling the motion to set aside the verdict, and in the giving and refusing of instructions), is the following: 1. Did the defendant company owe to the decedent the duty of having its engineman and fireman keep, while not prevented from so doing by necessary attention, in the exercise of reasonable care, to their other duties, a reasonable lookout ahead for his being on the track in front of the train which killed him on the velocipede he was then using, while traversing, at his usual time in the morning for so doing, that portion of the track which was between his home and Midway, under the express permission given him by the company to so use such track? The question must be answered in the affirmative. It appears from the evidence that the decedent had the express permission of the defendant to so traverse the portion of the track mentioned at such time. He was going to and from the place of business in which he was employed by the defendant, along its tracks, in a vehicle provided by it, and at the usual time. As a track repairer he was not a licensee, but,, under the circumstances in which he was using the track, although a track repairer, the defendant company owed him the duty of having its engineman or fireman, on the train which killed him, while not prevented from so doing by necessary attention, in the exercise of reasonable care, to their other duties, keep a reasonable lookout ahead for his being on the track in front of the train while it was going over the portion of the track in question. — 362 — Several positions are taken in argument in behalf of the defendant company, to the effect that the duty in question, on the part of the defendant, did not exist in the instant case; but as these positions are all based on the assumption of fact that the deceased was not a licensee, and that the defendant owed him no higher duty than that owing to any other track repairer in the discharge of his ordinary duties, it is unnecessary for us to deal with them, or with the authorities cited to sustain such positions. The duty owing to the plaintiff’s intestate was not because he was a licensee in the usual acceptation of that term, but because the privilege granted him gave him the right to expect, and imposed upon the defendant the duty to exercise, a higher degree of care for his protection than if he were simply in the discharge of his ordinary duties as a track repairer. The following subsidiary questions are also presented by the assignments of error: 2. Did the necessary attention, in the exercise of reasonable care, to their other duties prevent the engineman from keeping the reasonable lookout ahead above mentioned? And was the failure to keep such lookout the proximate cause of the death of the decedent? The first branch of the question must be answered in the negative, and the second in the affirmative. Laying aside the consideration of any other evidence on this subject, other than the testimony of the engine-man and fireman, we see that it affirmatively appears from that testimony that there was no necessary attention at the time to any other duty which prevented the engineman from keeping a lookout ahead for the decedent being on the track in front of the train. According to this very evidence, the engineman could have — 363 — given the necessary attention to the lubricator, about ■which he was engaged at the time, equally as well at some other time, which would not have interfered with his keeping the aforesaid lookout. And according to this very testimony, too, the real reason why the engineman did not keep such lookout at the time was that he had not been informed and- did not- consider that it was his duty to keep any lookout for the decedent. Having given the decedent the express permission aforesaid to use the track as he was doing, it was the duty of the defendant company to have had the engineman instructed that it was his duty to keep the aforesaid reasonable lookout for the decedent. Hence, the ignorance of the engineman on the subject aforesaid furnished no defense to the defendant in the premises. And since it is apparent from the circumstances shown in evidence that had such lookout been kept, the perilous position of the decedent just before he was killed, and his obvious unconsciousness thereof, would have been discovered and the accident, by the exercise of reasonable care on the part of the engineman, could have been prevented, it is also apparent that the failure to keep such lookout was the proximate cause of the death of the decedent. 3. Was the decedent engaged in interstate commerce at the time he was killed? The question must be answered in the affirmative. The positions taken in behalf of the defendant company, and the authorities cited in support thereof, do not controvert the fact that the track was being used by the defendant company in the transportation of interstate commerce; nor the correctness of the conclusion that the decedent was engaged in interstate commerce at the time he was killed, if he was then engaged in discharging a duty incident to his employ — 364 — ment of inspecting the track. That the latter was a fact is a reasonable inference from the uncontroverted evidence, and, hence, in view of the verdict of the jury, must be regarded by us as an established fact in the case. That being so, any discussion of the aforesaid positions, or of the authorities cited in support thereof, would be irrelevant, and therefore will not be entered upon. 4. Are the cases of Southern Railway Co. v. Hall, 102 Va. 137, 45 S. E. 867, and Southern Railway Co. v. Adams, 129 Va. 233, 105 S. E. 566, controlling authority to the effect that there can be no recovery against the defendant company in the instant ease, for the reason that there is such an absence of evidence as to the situation at the time the decedent was killed as to leave it a mere matter of speculation and surmise as to whether the death was caused by the negligence of the defendant, or solely by the contributory negligence of the decedent? The question must be answered in the negative. It is true that in the instant case, as in the eases in question, there was no eyewitness of the accident itself. But there the similarity between the eases ends. In the instant case the circumstances, shown by the uncontroverted evidence, put before the jury the whole situation shortly preceding and practically almost up to the very instant of the accident; thus furnishing evidence from which the situation at that very instant might be inferred by the jury with all of the certainty that would be required even in a criminal case. And that situation, as so inferred, presents a case, in which, for the reasons above stated, the death of the decedent appears to have been proximately caused by the failure of the defendant company to discharge the duty in — 365 — eumbent on it, as above held, of having its engineman and fireman keep a reasonable lookout ahead for the decedent being on the track. The ease will have to be affirmed. Affirmed.