Southern Railway Co. v. Tyree & Administrator , 114 Va. 318 ( 1912 )

Harrison, J.,

delivered the opinion of the court.

This suit was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate by the defendant railway company. There was a demurrer to the evidence by the defendant, which was overruled, and judgment was given the plaintiff for the damages ascertained by the jury. This action of the circuit court is brought under review by the present writ of error.

Viewed from the standpoint of a demurrer to the evidence the following facts are established: The deceased was an employee of the defendant on its yards at Monroe, in Amherst county. His duty was to go to the lodging places of men composing the crews of expected trains and awaken them for service thereon. On the night of his death the deceased, to awaken a creAV for an expected “perishable” train, about 2 o’clock A. M., left the company’s depot to go to its Young Men’s Christian Association building, one of the lodging houses of the men, situated on the opposite side of the tracks and about 200 yards south of the depot. The night was dark and he carried a lantern in his hand. In going to and returning from the Y. M. C. A. building the deceased pursued the usual route taken by the employees and the public generally, with the knowledge and acquiescence of the company — indeed no other practicable route was provided — and this route necessarily involved crossing the railroad tracks. In returning from the Y. M. C. A. building the deceased was run upon and killed by an engine drawing a through passenger train going north, which was about fifteen minutes late and running down grade, with the steam shut off, at an estimated speed of thirty miles an hour. The engine of this passenger train was without the usual light in front of it, and without light in the cab. The engineer says the whistle blew when the train was three-fourths of a mile from the yards, and the bell was rung in the yards. The evidence of the plaintiff is that no sound of bell or whistle was heard in the yard or elsewhere until the short danger blast was sounded almost simultaneously with the impact of the engine and the deceased.

The defendant insists that inasmuch as this accident occurred in its yard it was under no obligation to warn the deceased of the approach of this through passenger train by the use of an efficient headlight, or sounding a whistle, or ringing a bell, or slackening its speed and running its train under control; and the cases of Pittard v. Southern Ry. Co., 107 Va. 1, 57 S. E. 561, and N. & W. Ry. Co. v. Belcher, 107 Va. 340, 58 S. E. 579, are relied on to sustain this contention.

These cases have no application to the facts disclosed by this record. In both the cases relied on the injuries were inflicted on yard employees, within yard limits and by yard engines. The reasons leading to the conclusion reached in those cases with respect to the operations of a railroad yard do not exist in the case of a through passenger train, running on schedule time over the main line. The reasons are obvious which justify a railroad in dispensing with ordinary signals and lookouts in the work of shifting engines on railroad yards, and in placing upon the employee there a higher degree of care for his own safety from such engines; but they are without force when applied to the case of a regular train on a regular through run over the main line. In the latter case there are no duties upon the engineer and fireman except the usual duty of looking ahead and attending to the proper operation of the train. A through train upon the main line has the same independence of position and action within yard limits that it has outside, and no reason can be given for exempting the engineer and fireman, engaged in the operation of a through passenger train, from exercising the same care in passing through yard limits that they must exercise elsewhere. Indeed, the yard being a place of ceaseless activity, they should be more on the alert to avoid injury because of the increased danger of harm occasioned by the environments.

It is unnecessary to review the evidence adduced in tbip case to sustain the judgment complained of. It is sufficient to say that if the case had gone to the jury they might readily and reasonably have found that the plaintiff’s intestate lost his life without fault on his part, and solely as a result of the negligent operation of its passenger train by the defendant company. It is well settled -that if the jury might find the defendant guilty of negligence and the deceased free from contributory negligence, the court must so find on a demurrer to the evidence. Bass v. N. & W. Ry. Co., 100 Va. 8, 40 S. E. 100; C. & O. Ry. Co. v. Hoffman, 109 Va. 44, 63 S. E. 432.

The action of the court in giving and refusing instructions which relate solely to the measure of damages is assigned as error. This objection is without merit. The elements of damage and the rules for their ascertainment by a jury in the case of death by wrongful act have been so long and thoroughly established by this court that citation of authority on the subject is unnecessary. The action of the circuit court touching this matter is in conformity with our decisions, and we have no disposition to depart therefrom, and adopt the new elements of damages suggested for the jury’s consideration by the instructions refused.

Upon due consideration of the whole case, the judgment must be affirmed.

Affirmed.