Va. Mid. R. R. Co. v. White

Citations

• 84 Va. 498
• 5 S.E. 573
• 1888 Va. LEXIS 102

Syllabus

<p>1. Railroads—Negligence—Persons on track—Instructions.—An instruction founded on the engineer’s duty after discovering a person walking on the track, but ignoring his duty to exercise ordinary care to discover that person’s dangerous position, is improper.</p> <p>2. Idem— Licensee.—And so likewise is an instruction founded upon the idea that a person is a trespasser, who is walking on the track within city limits and for a long time, with the company’s acquiescence, the common pathway of the public.</p> <p>3. Idem—Rule of liability.—Mere negligence will not disentitle plaintiff to recover, unless it were such that, but for that negligence, the misfortune could not have happened; nor if the defendant might, by the exercise of care on his part, have avoided the consequence of the carelessness of the plaintiff.</p> <p>4. Idem—Instructions.—Where instructions already given cover the entire case and properly submit it to the jury, it is not error to refuse to give others even though properly stating the law. I/unatic Asylum v. Flanagan80 Va-, 110.</p> <p>5. Idem—Negligent killing—Case at bar.—In action by decedent’s administrator against railroad company, it was proved that the only outlet from the house whence decedent came, was by way of company’s tracks, that had long been, with company’s acquiescence, the common pathway to the public to and from the house and its vicinity to Lynchburg; that decedent stepped off of side track on to the main track to avoid a material train, and was killed by a yard engine and tender not visible when he came on to the track, being around a bluff, but was backing rapidly within city limits and against its ordinances in the direction decedent was walking; and that the engineer failed to look out, blow the whistle or give any warning:</p> <p>Held:</p> <p>The defendant’s servant’s negligence was the proximate cause of the killing, and plaintiff is entitle to recover through decedent may not have been entirely free from fault.</p>