In Rangeley v. Southern Ry. Co., 95 Va. 715, 30 S. E. 386, it is said that a railroad company has the right to assume that a grown person seen on its track will get out of the way of an approaching train, and the company is not liable unless it is shown that after the company, in the exercise of ordinary care, could have discovered that he was not going to get off the track, it could have avoided the injury.
O’KEEFE, Adm’x, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY
Supreme Court, Iowa, October 21, 1871.
Reported in 32 Iowa Reports, 467.
Appeal from Polk District Court.
Action by an administratrix to recover damages for the death of her husband, Dennis O’Keefe, alleged to have been killed by being run over on the defendant’s road, through the negligence of the defendant’s agents and employees. Defence in denial, and also that the death was caused by the drunkenness and negligence of the plaintiff’s intestate. There was a jury trial, resulting in a verdict and judgment for plaintiff for $1000. The defendant appeals.
Cole, J. [Omitting statement of evidence.] After the evidence was closed, the defendant asked the court to instruct the jury as follows: “If you are satisfied from the evidence that Dennis O’Keefe, plaintiff’s intestate, was, a short time before the alleged injury, in a state of intoxication; that in such condition he went upon defendant’s railroad and laid himself down upon the track, or fell down unable to support himself because of such intoxication; that remaining in that condition a passing train crushed one of his legs; that after the injury he was yet under the influence of intoxicating liquors drank before the injury; that the injured limb was amputated and death ensued, you will find for the defendant, unless you further find from a preponderance of the evidence that defendant or its agents had knowledge that he was thus lying in time to prevent the accident,” to which the court added, and then gave it, “or, could have known with the exercise of ordinary caution.” This modification was excepted to at the time, and is now assigned as error.
The well-established law of this state is, that in an action to recover damages for the negligent act of the defendant, the plaintiff will not be entitled to recover if his own negligence contributed directly to the injury. In other words, this court recognizes and applies the doctrine of “contributory negligence,” and not the doctrine of “comparative negligence.” The latter doctrine obtains only in Illinois and Georgia, while the former obtains in the other states, and also in the Federal courts. The modification complained of ignored the doctrine of contributory negligence, and substantially told the jury that plaintiff might recover without regard to his negligence, if the defendant could have prevented the injury with the exercise of ordinary caution. The doctrine of the modification goes even farther than that of comparative negligence; for, by the latter, a plaintiff can only recover when he shows the defendant’s negligence to have been greater, by comparison, than his, while by the modification the plaintiff might recover if the defendant did not exercise ordinary caution, although the plaintiff’s intestate may have been guilty of a much greater negligence in laying himself down, in a condition of intoxication, near to or upon the track. A similar modification was made to the second instruction. In each there was error.
Reversed.
PICKETT v. WILMINGTON & WELDON RAILROAD COMPANY
Supreme Court, North Carolina, September Term, 1895.
Reported in 117 North Carolina Reports, 616.
Avery, J.[[213]] The most important question presented by the appeal is whether the court erred in refusing to instruct the jury that if the plaintiff’s intestate deliberately laid down upon the track and either carelessly or intentionally fell asleep there, the defendant was not liable, unless the engineer actually saw that he was lying there in time, by the reasonable use of appliances at his command, to have stopped the train before it reached him.