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

56 S.E. 321, 106 Va. 383, 1907 Va. LEXIS 100

• Court: Supreme Court of Virginia
• Decided: January 17, 1907
• Status: Published

Opinion

Keith, P.,

delivered the opinion of the Court.

The intestates of plaintiffs were engaged in construction work upon the line of the Rorfolk and AYestern railway in AYest Virginia, and these actions are brought to recover damages for negligence on the part of the railway company causing their death.

The declaration contains three counts, in each of which the AYest Virginia statute is set out at large:

“AYhenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.

“Every such action shall be brought by and in the name of the personal representative of such deceased person; and the .amount recovered in every such action shall he distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. In every such action the jury may give such damages as they shall deem fair and just, not exceeding $10,000, and the amount so recovered shall not be subject to any debts or liabilities of the deceased; provided, that every such action shall commence within two years after the death of such deceased •person.”

There was a demurrer to this declaration and to each count thereof, which was overruled by the trial court. We shall not ■notice specifically any of the grounds of demurrer except the fifth, which states that “The declaration does not, nor does any •count thereof, allege that under the law of West Virginia it was the duty of the defendant company to do and perform the matters and things alleged to be the company’s duty in the premises.”

In Nelson’s Admr. v. C. & O. R. Co., 88 Va. 911, 14 S. E. 838, 15 L. R. A. 583, this court said: “There is no doubt that in a general sense a statute can have no operation beyond the state in which it is enacted. But where a right to sue is given "by statute in one state we can see no good reason why an action to enforce, that right should not be entertained in the courts -of another state, on the ground of comity, just as if it were a common-law right, provided, of course, it be not inconsistent with the laws or policy of the latter state. If this were not so, a cause of action of any sort arising in a state whose laws are •codified could not be asserted in another state because the right to sue is statutory. The true test, therefore, in all such cases would seem to be this: Is the foreign statute contrary to the 1m own policy, or prejudicial to the interests, of the state in which the suit is brought ? And if it is not, then it makes no difference whether the right asserted be given by the common law or by statute.” In Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439, quoted from in the case just cited, Mr. Justice Miller says: “It is difficult to understand how the nature of the remedy, or the jurisdiction of the court to enforce it, is in any manner dependent on the question whether it is a statutory right or a common-law right. Whenever, either by the common law or the statute law of a state, a right of action has become fixed, and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties.” Judge Lewis cites a great number of cases in support of his opinion, to which we refer.

In Minor on Conflict of Laws, page 25, it is said: “At one time it was thought that statutes giving the right to recover for the death of a person by wrongful act were penal, and not enforceable in other states; but this view has long since been rightly overruled, and it is now universally held that such statutes are remedial, conferring a special remedy, and, therefore, enforceable abroad.”

And just here it may be as well to anticipate what we deem it necessary to say upon the subject of the laws of West Virginia. *

“Foreign laws are matters of fact, and like other facts should be proved, unless established by legal presumptions. A court will not take judicial notice of their existence or of their terms. And for this purpose the states of this union are foreign to one another. . . .

“Primarily, the mode of proving a foreign law depends upon its nature, as statutory or common law, written or unwritten. If the law which is to be proved is statutory the statute itself must usually be produced, or such copy thereof as may be approved as evidence under the law of the forum. The judicial decisions of the state whose law is to be proved are not usually to be received in evidence to prove what is its statute law (for they are not the best evidence), but they should be looked to in order to determine the proper construction of such foreign statutes after they have been otherwise established. And this is true though the same provisions in the statutes of the forum have been construed, differently there.

“With respect to the common or unwritten law of a foreign state or country the general rule is that it is to he proved by the best evidence the nature of the case will admit of. This rule was formerly construed to require as a usual thing that such unwritten law must he proved by the testimony of legal practitioners of the foreign state or other persons learned in its laws. It was thought inadmissible to introduce the reports of cases adjudged in a particular state as evidence of the common law of that state. But in recent years the opinions of the courts have undergone a change in this respect, and it is now pretty generally conceded that the published official reports of adjudged cases are competent evidence for this purpose. In such cases ft is the province of the jury to determine whether or not such adjudications have been made in the foreign state, hut it is the duty of the court to construe them and to deduce the rules of law they establish. And such decisions must he presented in evidence at the trial. They cannot he used for the first time in an appellate court.” Minor on Conflict of Laws, pages 528, 529, 530.

And summing up the discussion of this subject, on page 532, the author concludes “that the decided trend of American decisions is toward the presumption, in the absence of contrary evidence, that the foreign law under which either party claims is identical with the lex fori.”

We are of opinion that the demurrer to the declaration was rightly overruled; and that, with respect to the laws of West Virginia, there is no proper proof in respect to them, except as to the statute which gives the remedy and which is averred in the declaration, and that, except as to. that statute, the law of West Virginia applicable to this case is to he presumed to he identical with the law of this state upon the same subject.

It was agreed by counsel that the two cases of Denny’s administrator against the railroad, and Edwards’ administrator against the railroad should he tried before one jury; that the evidence should be considered as introduced in each case; that separate verdicts should be found by the jury in each ease; and that, in case of appeal, one record should be made up and one petition presented, which should be considered as made in each case.

The 'evidence tends to prove that Denny and Edwards were, at the time of the accident, employees of certain contractors engaged in the construction of a railroad track extending from Oakvale, in the state of West Virginia, to Willis, in that state; that the camp occupied by the employees was three or four hundred feet from the railroad track, and that there -were from one to two hundred persons engaged upon the work; that the work of construction had progressed until the part of the track upon which they were engaged at the time of the accident was about half a mile east of the camp; that upon the day of the accident Denny and Edwards got upon the track and were walking in the direction of the place where'they were to be employed during the day; that this part of the track was used by the employees with the knowledge of the railway company, and had been so used during the whole time the work of construction had been going on continuously, and without objection from any quarter ; that on the morning of the accident, after these men had gotten upon the track, a coal train, moving from the west towards the east, in the direction in which they were walking, came along, but as it had sounded its whistle at a station a short distance to the west Denny and Edwards stepped from the track and it passed on, doing them no injury. They returned to the track as soon as this coal train had passed and had walked but a short distance when they were struck by a construction train and killed. This construction train consisted of two or three dirt cars, a box car, and an engine. It also was moving from the west toward the east, the dirt cars being in front as the train moved, pushed by the engine, which was in the rear. The morning is “described as being dark and gloomy; the time, just before or about sunrise on the 22d of November, and persons walking along the track could be indistinctly seen at a distance of from 75 to 100 yards. There is evidence of a negative character to the effect that no bell was rung and no whistle sounded, and with respect to these facts it may be that the evidence was of such character as to create a conflict, in accordance with Bryant’s Admr. v. So. Ry. Co., 95 Va. 212, 28 S. E. 183, to be determined by the jury. "With respect to the light the evidence seems to be that while there was none upon the dirt cars, which were in front and nearest to the persons injured, a 'bralternan upon the box car did have a light. There was evidence also that there were paths alongside the railroad track -leading to the place at which the men were at work, and a road running from the camp in the same direction, but which necessitated a considerable d.etour and the crossing of lands as to which there is no proof that the employees had any license except that they were permitted by the owners to drive the mule and carts over them for certain purposes. It appears also that these means of access to the work were less convenient than the railroad track, the road referred to being more circuitous, and the paths being rough and uneven; so that it had been the custom for months for the employees of the contractors to use the railroad track in passing from the camp to the place at which they were employed, the point at which the daily work was to be performed moving gradually to the east as the work upon the track progressed from day to day.

ITpon this state of facts the plaintiffs and the defendant asked the court to instruct the jury; and the court, taking these prayers for instructions as the basis for its action, gave to the jury fifteen instructions of its own.

The first instruction states that if the jury “believe from the evidence that the defendant company contracted with contractors to do certain double-tracking, and further believe from the evidence that it was contemplated in said contract that the men engaged in said work should use the tracks of the company in going to and from said work, or that the use of said track was practically necessary in order to accomplish said work, such use of said track by the employees of said contractors did not constitute said employees either trespassers or mere licensees, but they were there by invitation of the company.” There is no proof of the terms of the contract between the defendant company and the contractors. There is proof, and abundant proof, that there was a contract between the contractors and the defendant company, and that Denny and Edwards were the employees of the contractors. The object of this instruction is to take the persons injured out of the category of mere licensees, and to place them upon the railroad track by the invitation of the company, thus changing the nature of the duly owed to them by the railroad company, -when there is no evidence of any such fact. Ror is there any evidence that the use of the railroad track as a passway was necessary to the accomplishment of the work upon which the employees were engaged. There is evidence that the track was a more convenient way of reaching the work. One of the grounds of defense was that plaintiffs’ intestates were guilty of contributory negligence in going on the track and in failing to keep a reasonable lookout for approaching trains; but if it was necessary to go on the track in order to do the work which they were employed to do, that necessity would be the equivalent of an invitation. • We do not mean to say that walking upon the track) under the circumstances, was in itself proof of contributory negligence; but it did impose upon them a higher degree of care in looking out for approaching trains, or for any other source of danger than would have been the case had they been upon the track by the express invitation of the company, or as a necessary result from the fact of employment, in either of which cases the duty imposed upon the railroad company to look out for their safety would have been in a corresponding degree increased.

The word “necessary” is somewhat elastic in its meaning. It may mean “such as must be”; “impossible to he otherwise”; “not to be avoided”; “inevitable.” Webster’s Dict. Or it may mean that one thing is convenient, or useful, or essential, to another. Bour. Law Dict. It is plain from the context that in the instruction under consideration it was used in its primary sense, as given by Webster, supra For in the next branch of the instruction it is said: “If, on the contrary, the jury believe from the evidence that such use was neither contemplated nor practically necessary, as aforesaid, then the mere use of said track by said employees, even with the company’s knowledge, whether for the sake of convenience or otherwise, constitutes them mere licensees, and as such the defendant owed them the same duty as to trespassers.”

The second instruction is as to the duty owed by the railroad company to the persons injured, regarding them as mere licensees. The decisions of this court have established that mere licensees entering upon the premises of another take upon themselves the ordinary risks attendant upon the situation as it exists. By “mere licensees” we mean those who are clothed with no right, and to whom no invitation has been extended, but whx> are upon the premise of another by permission or acquiescence. Our decisions establish it to he the duty of a railroad company with respect to mere licensees, where there is reason to expect their presence in a position of danger upon the track, as where it is known to a railroad company that its track is habitually used as a passway, to use ordinary care for their safety and to do-whatever may be within its power to avoid injury after their position of danger is known. While such licensees have no right to expect that railroad companies shall make, or equip, or run their trains, or construct or repair their tracks with a view to their safety, yet it is the duty of the railroad company in the operation of its trains, under such conditions as exist and with such equipment as has been provided, to exercise ordinary care to avoid injuring persons walking upon that track after it saw or knew of their danger, or could have known of it by the exercise of reasonable care. N. & W. Ry. Co. v. Wood, 99 Va. 156, 31 S. E. 846; C. & O. Ry. Co. v. Rogers, 100 Va. 333, 41 S. E. ; C. & O. Ry. Co. v. Farrow’s Admr., ante, page 137, 55 S. E. 569.

In N. & W. Ry. Co. v. Wood, supra, the rule with respect to hare licensees is stated to he that “One who is permitted by the passive acquiescence of a railroad company to come upon its depot platform for his own purposes, in no way connected with the railroad company, is a hare licensee, who, though relieved from the responsibility of a trespasser, takes upon himself all the ordinary risks attached to the place and the business carried on there.”

In Hortenstein v. Virginia-Carolina Ry. Co., 102 Va. 914, 47 S. E. 996, it is said: “A railroad company does not owe to trespassers or to hare licensees the duty of providing reasonably safe appliances, and such a party cannot complain though the appliances he ever so unsafe. Hor does it owe them the duty of giving notice of a change of schedule of its trains, or their rate of speed, nor of sounding crossing signals.” See also Walker’s Admr. v. Potomac & Fredericksburg R. Co., 105 Va. 226, 53 S. E. 113.

In N. & W. Ry. Co. v. Stegall’s Admx., 105 Va. 538, 54 S. E. 19, it was held that “A railroad company does not owe the duty of prevision to a bare licensee on its tracks, nor does it owe him the duty of employing competent servants to manage its trains, or to run them in any particular manner, or at a particular rate of speed.”

A licensee, while not regarded as a trespasser, must, when upon the track of a railroad, exercise that degree of diligence for his safety which his situation requires. 'He is theré by permission, and is not a trespasser. The railroad company must exercise reasonable care to do him no injury, and he must use reasonable care for his own protection, and is required vigilantly to look and listen both in front and rear for approaching trains. Shearman & Eedfield on Heg., section 480.

We do not think there is any error in the court’s instructions Hos. 2 and 3. Hor is there any error in instruction Ho. 4, unless it be in the use of the -words “by having a proper lookout.” If the court meant to say that it was the duty of the employees of the railroad company upon the train, under the circumstances, to take reasonable care to discover and not to injure any person whom they might reasonably expect to be on the track at that point, the instruction would be free from objection, but would seem to be unnecessary in view of instructions Hos. 2 and 3, which would then cover the same proposition. If, however, the court meant to say that it was the duty of the railway company to provide additional force in order to keep a proper lookout, then it would be erroneous; and at a future trial it would be well for the court to guard against' what seems to be, at the least, ambiguity of expression.

We see no objection to the fifth, sixth, seventh, eighth and ninth instructions 'given by the court. The tenth instruction must fall with instruction Ho. 1, to which it refers. We see no objection to instruction Ho. 11. Ho. 12 is amenable to the same objection taken to Hos. 1 and 10, and must fall with them. We find no objection to the law as stated in Hos. 13, 14 and 15, which are approved.

Without passing upon the facts we are of opinion that for errors in the instructions the judgment should be .reversed and a new trial awarded.

Reversed.