Chesapeake &. O. Ry. Co v. Gayle

• Decision Date: 15 June 1922
• Citation: 112 S.E. 785
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE &. O. RY. CO. v. GAYLE.

112 S.E. 785

CHESAPEAKE &. O. RY. CO.

v.GAYLE.

Supreme Court of Appeals of Virginia.

June 15, 1922.

Error to Circuit Court of City of Williamsburg and County of James City.

Action by J. P. Gayle, trading under the firm name of the J. P. Gayle Supply Company, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Henry Taylor, Jr., of Richmond, and Lett & Massie, of Newport News, for plaintiff in error.

Henley, Hall, Hall & Peachy, of Williamsburg, for defendant in error.

PRENTIS, J. A train of the Chesapeake & Ohio Railway Company, hereafter called the company, struck an automobile belonging to the defendant in error, hereafter called the plaintiff, at a crossing not far from the city of Williamsburg on the public concrete road leading from Penniman to Williamsburg. This action followed, in which there was a verdict and judgment in favor of the plaintiff, of which the company is complaining.

The railway track is straight for about two miles east of the crossing, while the county road, as it approaches the railway tracks from the east, runs in the same general direction, converging with and crossing them obliquely, thus forming a sharp acute angle between the county road and the track going west. The railway track was depressed for a considerable distance east of the crossing, and the view of an approaching train from the county road was still further obstructed there by some weeds growing on the right of way as well as by a field of corn growing on private property just at the apex of the angle. The automobile was new, held for sale by the plaintiff as a dealer, and was being driven by his agent, and the accident occurred at night.

For the company it is claimed that the headlight on the engine was a very strong one; that the statutory signals were sounded in strict accordance with the law; that a stationary crossing bell was ringing as the train approached; that it cannot be held liable because entirely free from negligence; and that the collision was solely due to the gross negligence of the driver of the automobile. On the other hand, the evidence for the plaintiff tends to prove that the signals required by law were not sounded; that the driver of the machine was lulled into a sense of security because the stationary warning bell was not ringing, and that he did not discover the approaching train until the danger was imminent and the injury unavoidable. This being the state of the evidence, the question is clearly one of fact for the determination of the jury, and their finding is conclusive unless there was some harmful error committed during the trial.

It is claimed by the company that there is such hopeless obscurity and conflict in the instructions that the verdict should be set aside for this reason.

Fourteen instructions were given, eight at the request of the plaintiff and six upon motion of the company—certainly far too many in such a case as this, in which the questions of fact were so simple and the questions oflaw so well settled. The jury would have been probably better aided by a single instruction presenting the conflicting views of the parties under the evidence; certainly two would have been amply sufficient

The only instruction given for the plaintiff about which there can be any fair question, in our view, is No. 5, reading thus:

"The court instructs the jury that, if you believe from the evidence that the crossing at which the accident complained of occurred was rendered dangerous by reason of the amount of travel over it, or by reason of obstruction to a clear view of the tracks, and that the defendant ran its train while approaching said crossing at an unreasonable and excessive rate of speed, or failed to sound its electric gong located at said crossing, and that such speed of said train or failure to sound said gong was negligence on the part of the defendant on account of the dangerous nature of the crossing, and if you further believe that such negligence was the proximate cause of the injury to plaintiff's car, then you may find for the plaintiff."

The objection to that instruction is the allusion therein to the fact that the train was running quite rapidly (the evidence shows the speed was 50 miles an hour), and that it submitted this to the jury as an act of negligence sufficient to justify a recovery. It is, however, noted that instruction B for the company expressly told the jury that the mere speed of the train is not per se evidence of the negligence of the company, and, reading all of the instructions together, it seems to us that the jury could not possibly have misunderstood the true and decisive issues of fact submitted to them; those issues being whether or not the company was negligent in failing to sound the signals required by law, or because of the alleged failure of the electric gong located at the crossing to ring, or, on the other hand,...