R. & D. Railroad v. Pickleseimer

Citations

• 85 Va. 798
• 10 S.E. 44
• 1889 Va. LEXIS 93

Syllabus

<p>1. Contributory Negligence consists in such acts or omissions of plaintiff, amounting to want of ordinary care, as co-operating with negligent acts of defendant, are the proximate cause of the injury.</p> <p>2. Idem—■Negligent injuries—Case at bar.—Plaintiff, a live-stock shipper on defendant’s freight train, with driver’s pass from Charlotte to Richmond, was told by conductor before reaching Danville that there the caboose would be detached and he have to walk or ride atop of stock-car over Dan river bridge. Reaching Danville about 9J P. M., train stopped some moments, -during which plaintiff agreed with brakeman to stay and guard wood on caboose platform, latter to notify former when to get atop stock-car. Plaintiff did so. Shortly trains moved up slowly. .When he was about to get atop from platform of caboose, it was cut loose, and some one said, “jump down.” This plaintiff did, and overtook rear of train fifteen or twenty feet from caboose. It was dark and drizzly. Reaching car, overcoat on and broad, flat, rectangular valise in hand, he passed to the right side and attempted to ascend a ladder to the top, the train being then in motion. ' Climbing up, just as he threw his valise over the hand-hold on the top of the car, he fell some twenty feet to the ground and was injured. In action for damages;</p> <p>Held :</p> <p>Plaintiff not entitled to recover, the evidence disclosing on plaintiff’s part contributory negligence operating as the proximate cause of the injuries complained of, without which they could not have happened, this case not falling within the class where passenger is excused for his rash act by reason of imminent peril due to defendant’s negligence.</p> <p>3. Instructions.—In this case, after instructing the jury as to the law of contributory negligence, the trial court added: “A plaintiff may under certain circumstances, be entitled to recover damages for an injury, although he may, by his own negligence, have contributed to produce it.”</p>