
    Margaret Fagan, as Administratrix, etc., of Nicholas J. Fagan, Deceased, Respondent, v. Atlantic Coast Line Railroad Company, Appellant.
    Second Department,
    November 1, 1915.
    Railroad — negligence — death of passenger removed from train while in an intoxicated condition and left by track in total darkness — duty of common carrier toward passengers.
    In an action under the Code of the State of Virginia to recover for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant’s servants in charge of one of its trains upon which he was a passenger, it appeared that the deceased was found by the defendant’s conductor on a through train in an intoxicated condition, and with a local ticket. The conductor signaled the train to stop at the station where the deceased lived and he was assisted from the train and left in total darkness about twenty-five feet from the train and told to remain there until the train had passed. On the next morning the deceased was found unconscious and fatally inj ured alongside the main track.
    Evidence examined, and held, sufficient to sustain a finding of negligence upon the part of the defendant, but insufficient to connect the decedent’s death with the defendant’s negligence with any degree of certainty, and that, therefore, the judgment in favor of the plaintiff should be reversed and a new trial granted.
    While a common carrier is held to the exercise of a high degree of care to its passengers, and it was defendant’s duty to see to it that the deceased was left in a reasonably safe place, it is not charged with the obligation or liability of an insurer.
    Appeal by the defendant, Atlantic Coast Line Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of October, 1914, upon the verdict of a jury for $6,000, as amended by an order entered in said clerk’s office on the 2d day of November, 1914, and also an appeal from an order entered in said clerk’s office on the 16th day of Octo.ber, 1914, denying defendant’s motion for a new trial made upon the minutes.
    
      Henry M. Dater [Harry K. Davenport with him on the brief], for the appellant.
    
      John C. Robinson, for the respondent.
   Rich, J.:

The defendant appeals from a judgment in favor of the plaintiff in an action to recover for the death of her intestate, alleged to have been caused by the negligence of defendant’s servants in charge of one of its trains upon which he was a passenger, and from an order denying its motion for a new trial made upon the minutes. The accident happened in the State of Virginia, and the action is brought under the provisions of sections 2902 and 2903 of the Code of that State which authorizes the maintenance of actions of this character.

The deceased was a blacksmith, forty-two years of age, residing at Carson, a small hamlet upon defendant’s road a few miles from Petersburg, at which place the defendant maintained a station where its local trains regularly stopped but its through trains did not. On October 20, 1911, plaintiff’s intestate left Carson on defendant’s twelve-thirty p. m. train for Petersburg, being at that time sober. At about eight-forty p. M. of that day, defendant’s through tram No. 85, composed (exclusive of its engine and tender) of ten cars — a mail car, baggage car, two day coaches, one dining car and five Pullman sleeping cars—left Petersburg, south bound, in charge of Joseph R. Lifsey, conductor. This train was not scheduled to stop at Carson, its first regular stop being at Emporia, thirty-five miles further south. About seven or eight minutes after leaving Petersburg, the conductor, passing through the train, found the deceased in the rear vestibule of the first Pullman car, the sixth car from the engine, standing with his back against the end of the car, smoking a cigarette, and asked him where he was going. The deceased made no reply, but handed the conductor a local ticket from Peters-burg to Carson, which he took up and asked several additional questions, which were not answered. Nothing was said by the deceased except that he asked to be carried to his home. The conductor testified that when he first saw the deceased he did not observe anything to indicate that he had been drinking, but after speaking to him smelled whisky on his breath; that he did not consider him to be in bad condition; that he could walk all right but appeared “stupid,” in the use of which word he says he meant unconcerned or indifferent to his surroundings; that he offered deceased a seat in the car, which the latter did not avail himself of, and that he then went to one of the day coaches and directed the porter to signal the engineer to stop at Carson and, when that station was reached, to go hack and assist the decedent off the train. The signal was given and the train came to a full stop at Carson, the platform of the car upon which the deceased was standing being one hundred and forty-nine feet from the depot building, which was lighted. Before the stop was made, the conductor and porter had returned to the car platform where decedent had been left, and found him seated upon a stool used to assist Pullman passengers in alighting. As soon as the train stopped, the- porter opened the vestibule door, raised the trap, and, with a lantern in his hand, stepped down the four steps between the car platform and the ground, followed by the deceased. The deceased walked down the steps unassisted until he reached the bottom one, which was eighteen or twenty inches from the ground, at which point the porter took hold of his hand and assisted him to the ground. The conductor testified: “I told the porter, Isays, Assist him over to the pile of wood.’ That is, I meant, to hold his light so he could see where to walk, or to render any assistance that he might need, as far as that goes. That was my main object in telling him to assist him, to hold his light. ” The wood pile was twenty-five or twenty-six feet from the car. On the passage to the wood pile the deceased walked beside the porter, who had hold of his hand, without further assistance, and upon reaching it seated himself on a scantling by it. There he was left, in total darkness, in a condition which rendered him entirely unable to care for himself, with the warning to remain where he was until the train had passed. Nothing was said by the deceased during this time and there is no testimony showing his movements during the time that intervened before the accident. The evidence is sufficient to sustain a finding of negligence upon the part of defendant, but it does not connect the decedent’s death with the defendant’s negligence with any degree of certainty. Eight trains on defendant’s road passed Carson during the night of October twentieth and the early morning of October twenty-first— the first one, a freight train, south bound, at nine thirty-five p. M., about forty minutes after the deceased had been left at the wood pile; and the last one, a north-bound passenger train, at six thirty-three on the morning of October twenty-first. The deceased was found unconscious and fatally injured, alongside the main track, at about eight o’clock in the morning, at a point about three hundred and seventy feet north and further away from the wood pile where he had been left. For a distance of fifteen or twenty feet north of the body one of the rails of the main track had on and adhering to it blood stains and small pieces of flesh, tending to show that he was struck by a train that distance north of where he was lying when found. The deceased died an hour later, without having regained consciousness.

The plaintiff’s recovery rests upon the finding that the deceased was so greatly intoxicated at the time of and immediately preceding the accident as to be incapable of caring for himself and practically helpless, and that such condition had existed from the time he was left at the wood pile. The unfortunate feature of plaintiff’s case is that there is no evidence showing what he did after the train from which he was taken had proceeded on its way. It is not shown how the-accident happened. There is no evidence tending to show the condition of the deceased immediately prior to the time he was injured. It is possible that he may have become entirely sober before the accident. Again, if we are to indulge in a guess, it might easily be surmised that he had liquor on his person when he left the train, that he drank more and became intoxicated the second time, but we are not to speculate. The mistake with this judgment is that the jury were permitted to do that, and it must be reversed. While a common carrier is held to the exercise of a high degree of care to its passengers, and it was defendant’s duty to see to it that deceased was left in a reasonably safe place, it is not charged with the obligation or liability of an insurer. The verdict rests upon mere speculation. This conclusion makes it unnecessary to consider the other questions presented.

The judgment and order must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas and Stapleton, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment and order reversed and new trial granted, costs to abide the event.  