The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1878-09-19
Decision Of the Court Of Appeals.
rHE ED1NBuRa RAILROAD CASE.


THE EDINBURG RAILROAD CASE.
AS considerable interest has been mani
tested by persons throughout the lower par
OF the Valley, in regard to the killing O.
Sherman by the train on the Baltimore ant
Ohio Railroad, we make the following syn
opsis of the opinion of the Court, delivered
by Judge Moncure last Thursday
The Baltimore s. Ohio e. r. Company us
N. G. Sherman's Adm'r.-On the 14th o.
December, 1874, ]. T. Sherman, Adm's
of Nathan G. Sherman, deceased, brought
an action of trespass on the case
against the B. & o. R. R. Company in the
Circuit Court of Shenandoah county. The
action was brought under the provisions OF
the act OF 1901, oh. 30, p. 81, 81, 2, g.
and 4, which are embodied in the code Of
1873, page 996, CHI. 145, 81, s. 9 and TO-
The said 9TH section provides, in substance.
that whenever the death of person shall be
caused by the wrongful act, neglect or de-
fault of any person or corporation, and the
act, neglect or default is such as would u
death had not cnsued) have entitled the par
ty injured to maintain an action and recover
damages in respect thereof, then the person
who or the corporation which, would have
been liable if death had not ensued, shall be
liable to an action for damages, notwith
standing the death of the person injured
and although the death of the person injured
shall have been caused under such crcum-
stances as amount in law to felony; pro-
vided that IN no case shall the recovery ex.
coed $4,000. The remaining sections re-
late to the manner in which suit shall be
brought.
The declaration contained five counts; 1st
That the defendant on the 3rd Of September
1874, within the corporate limits Of the town
of Edinburg, did carelessly ard negligently
and with great force and violence, run and
drive its engine and coaches against Nathan
G. Sherman, and thereby did so greatly
wound said Sherman, that by reason thereof
he died, wherefore the plaintiffs Adm x
said she was entitled to recover $40, 900 under
the laws of Virginia for such cases. End
That the defendant did so carelessly and
negligently manage its train, that the real
car thereof became detached and separated
from the other cars, and being so detached
ran against Sherman and caused his death.
In the 3rd count it was charged that the de-
tached car had caused the death of Sher-
man, who was walking on the track in the
same direction as the train was running, and
who had stepped on the said track after the
train passed him and in the interval between
the train and detached car. The 4th and
9Th counts were correction Of the charges
in the lower courts.
The defendant demurred to the declara-
ton and put in a plea Of not guilty. On the
25th of August, 1875, the demurrer being ar
gued was ov erruled, and a jury was sworn
to try the general issue joined between the
parties. verdict was found for the plain
tiff and damages fixed at $4,000, and shortly
thereafter Judgment was rendered in ac-
cordance with the finding Of the jury. To
the said judgment the defendant applied to
judge of the Supreme Court for writ of
error and supersedeas which was according
ly awarded.
One Of the assignments of error was that
the Circuit Court erred in overriding the
motion of the defendant to set aside the ver-
dict and grant new trial, on the ground
that the verdict was contrary to the evidence,
law and instructions Of the Court, and the
question presented by this assignment OF err
ror was regarded by the Supreme Court as
by far the most important one arising in tine
case, being in effect, whether upon the mer-
its, the verdict ought not to have been in ia
vor of the defendant, even conceding the
correctness ofthe decision by the Court of
all the other questions decided in the case.
The facts proven on the trial of the case,
as CERTIFIED were that the plaintiffs intes-
tate was killed OH the track of the defen-
Gant's railroad, by the cars of the defen-
dant, which ran over him, whilst on his way
from his home to his place of business in Ed
inburg, the two places being distant from
each other about three quarters of mile. 1t
was not pretended that the act which caused
the death was wilfully done. 1t was GER
tainly the result of accident. But whether
such accident was occasioned by the neglect
of the defendant, or whether there was con :
tributory negligence on the part of the plain
tiff's interstate in producing the occ aston
and whether, ii there was, the negligence OF
the defendant was such and so gross as, not
withstanding any such contributory neeli-
gence, to render the defendant responsible
for the damages sustained-were the ques-
lions upon which this most important as
Segment of error depended
First. Was the accident which produced the
death of the plaintiffs intestate, occasioned
by the neglect of the defendant?
The defendants cars, which occasioned
the damage, was known as the through
freight train, and was managed by compe.
tent men of general good character, pru-
dent and diligent, and it was not proved
that they were remiss in performing theil
duty OIL this occasion. Such an uncoupline
as occasioned the damage was proved to have
been matter of common, if not frequent
occurrence, without any default on the part
of the company. The coupling was the reg.
ulation coupling Of the B. & 0. R. r., anl
regarded as safe by railroad men. 1t was
proved that the road. at the point where
Sherman was killed. was in good order. The
deceased, though on the track when the frs
part of the train approached the place where
he was walking, stepped off the track before
itreached him, and thus saved himself a
that time. But he stepped back upon the
track after the first part of the train hat
passed linn, and precisely at the time Of so step
ping back, was struck by the rear part of the
train and killed, so that none OF the hand
on the train had time to warn him OF hi
danger, even if they had seen him, which
they did not.
The evidence was conflicting as to the rate Q
speed at which both sections were running
at the time OF the accident. The witness fo
the defendant fixed the rate of speed at from
six to twelve miles; that of the plaintiff a
thirty miles. The trains were allowed t,
run at the rate of Is miles per hour, but no
| to exceed that rate. 1t was proved that tn
iolation of the rules OF the Company by it
| employees, was suspension. or dismissal.
| But even il there was neglect of duty OF
the part OF the defendant, it is necessary t.
inquire
Secondly. Was there contributory negli
gence on the part of the plaintiffs intestat
in producing the cause of his death? Tn
Court thought there certainly was. He chos
to run the risk of walking on the railroad, a
part of his way from his home to his plac
oe lab Nt,ar nvryo, r,,sr~ I,k IL