Norfolk & Western Railway Co. v. Munsell's Administrator

Harrison, J.,

delivered the opinion of the court.

This case grows out of the same accident that was the subject of inquiry in the case of Norfolk & Western Ry. Co. v. Holmes’ Admr., ante, p. 410, in which an opinion is handed down at the present term of this court.

The plaintiff’s intestate and her friend, Mrs. Holmes, were together at the time of the accident, and both were struck and killed at the same moment by the same engine. The testimony in the two eases is the same, and has only been printed in the other case, upon the understanding, however, that it is to be read and considered in this case.

• The action brought by Mrs. Holmes’ administrator was heard and disposed of upon a demurrer to the evidence. This case was submitted to a jury, upon instructions, and a verdict found for the plaintiff, which the circuit court refused to set aside. The record here contains bills of exception not found in the other record. . i

Bill of exception Ho. 1 is to the action of the court in admitting evidence, in the absence of any city ordinance, that the defendant company did not have a flagman or watchman at the gate. This question has been fully discussed and disposed of adversely to the defendant in the case of Norfolk & W. R. Co. v. Holmes’ Admr., ante, p. 410, 64 S. E. 46 , and what is there said need not be repeated here.

Bill of exceptions Ho. 2 is taken to the action of the court in giving certain instructions asked for by the plaintiff.

The first instruction is objected to upon the ground that there is nothing in the evidence to show that this was a place of any special danger, or that at the time of the accident there was any crowd in the neighborhood, or anything requiring' special precaution. The objection is wholly untenable. The opinion in the Holmes case discusses the evidence sufficiently to show that this instruction was fully justified and could not have misled the jury.

*420 The second instruction given for the plaintiff is objected to on the same ground as the first, and also for the reason that there was no sufficient testimony upon which to base it, and because of the plaintiff’s negligence in failing to look and see the train. These matters are fully discussed and disposed of in the Holmes case, and what is there said can be read in connection with this case.

It is further urged that instruction Ho. 2 is objectionable because it left the jury blindly to impose fanciful requirements upon the defendant, and singled out and emphasized one charge of negligence.

We find nothing in this instruction to authorize an imposition by the jury of fanciful requirements upon the defendant. The conditions are given which show the unusual surroundings and dangerous condition of the place, and the jury are told that if they believed such conditions existed, the defendant was bound to use such precautions as were proper, under the peculiar surroundings and circumstances, to give warning of the approach of the train. Hor was it objectionable for singling out and emphasizing one charge of negligence. It gave the jury the general conditions, as plaintiff believed them to exist, and said if they believed that such conditions did exist, then unless the defendant, in view of these conditions, used such precautions as were proper, the plaintiff was not guilty of contributory negligence. If the conditions shown in the evidence and described in the instruction existed, it was for the jury to say whether, in view of such conditions, the defendant had used such precautions as were proper for the protection of persons passing on the street when its engine was emerging from the yard.

Bills of exception Hos. 3 and 4, as stated in the petition to this court, are not regarded by the plaintiff in error as of sufficient importance to be emphasized. It is, therefore, unnecessary to prolong this opinion with their consideration.

The fifth and last assignment of error is to the action of the court in refusing to set aside the verdict of the jury.

*421 The verdict of the jury cauuot be disturbed upon the ground' that it is excessive, and the discussion in the Holmes case, to which reference is here .made, is sufficient to show that 'the verdict cannot be set aside upon the ground that it is contrary to the law and the evidence.

The judgment complained of must be affirmed.

Affirmed.