Canody v. Norfolk &. W. Ry. Co

• Decision Date: 20 January 1921
• Citation: Canody v. Norfolk &. W. Ry. Co, 129 Va. 56, 105 S.E. 585 (1921)
• Court: Virginia Supreme Court
• Parties: CANODY. v. NORFOLK &. W. RY. CO.

105 S.E. 585

CANODY.

v.NORFOLK &. W. RY. CO.

Supreme Court of Appeals of Virginia.

Jan. 20, 1921.

Error to Circuit Court, Appomattox County.

Action by H. L. Canody against the Norfolk & Western Railway Company.Judgment for defendant on sustaining demurrer to plaintiff's evidence, and plaintiff brings error.Affirmed.

S. L. Ferguson, of Appomattox, for plaintiff in error.

F. S. Kirkpatrick, of Lynchburg, and W. H. Mann, of Petersburg, for defendant in error.

PRENTIS, J. H. L. Canody was injured by a train of the Norfolk & Western Railway Company at an unprotected highway crossing in the village of Appomattox, while driving a heavily loaded authomobile truck.He proceeded by motion for the recovery of damages for his injuries, and at the conclusion of the testimony the company demurred to the plaintiff's evidence, which demurrerthe court sustained and entered judgment for the company, of which action the plaintiff is here complaining.

While the record is voluminous and the arguments both lengthy and exhaustive, as we comprehend the case, it is only necessary for us to refer to those conceded facts which under well-established rules of law are decisive of the issue involved.It appears from the plaintiff's own evidence that, having stopped at a point on the south side of the railway tracks just before making a sharp turn to cross the railroad at a right angle, he stopped, looked and listened, and failed to hear or see any approaching train.At this point, however, his vision to the east, from which the train which injured him approached, was intercepted by a small hill.He then turned his machine, and, according to his own testimony, several times repeated, did not make any further attempt to look forapproaching trains until his peril was imminent and his attention was sharply called thereto by his helper, who was riding on the rear end of the truck, facing west, in the opposite direction to that from which the train approached.He and his attorneys undertake to explain and excuse this failure to look for and protect himself against the danger by claiming that it required his entire attention to guide the machine across the track, and therefore that he was forced to look straight ahead.It appears that, if he had looked again when he was within 10 feet of the first of the four tracks, he could have seen at least 1, 000 yards down the railroad looking east; that his helper, Mayberry, who was several feet further away from the track sitting on the rear end of the truck, and hence not in as good a position to see as he was, saw the train first, just as the machine pulled up on the crossing about on the first track, sharply called his attention twice to the danger, and, when Mayberry reached the conclusion that a collision was inevitable, he jumped from the rear end of the truck between the first and second tracks and thus saved himself.The plaintiff himself testifies that, when he first heard this warning and looked, the train was 100 yards from him, that he was on the second track, and that he nevertheless continued to go forward, quickly changing the speed of his machine from low speed to second speed because he thought it more dangerous to stop than to go forward, and the rear end of the truck was struck before it cleared the third track.He also claims that his view was obstructed by a local freight train, standing on the east-bound track, and that the noise of the engine of the automobile interfered with his hearing.The train was running very rapidly, sounded no crossing signal, and rang no bell.

As the case is before us upon a demurrer to the evidence, we have stated the facts as strongly as the record justifies in favor of the plaintiff, but it is due to the railway company to say that, if the testimony of its witnesses is true, there was nothing to obstruct his vision, that the signals required by statute were given,...