Anderson v. Clinchfield R. Co

• Decision Date: 09 September 1938
• Citation: 198 S.E. 478
• Parties: ANDERSON. v. CLINCHFIELD R. CO.
• Court: Virginia Supreme Court

198 S.E. 478

ANDERSON.

v.CLINCHFIELD R. CO.

Supreme Court of Appeals of Virginia.

Sept. 9, 1938.

Error to Circuit Court, Dickenson County; Alfred A. Skeen, Judge.

Two separate actions by J. H. Anderson, administrator, etc., and another against the Clinchfield Railroad Company to recoverfor the deaths of plaintiffs' decedents who were killed in a crossing collision. Judgment for defendant in each case, and plaintiffs bring error.

Affirmed.

Argued before HOLT, HUDGINS, GREGORY, BROWNING, and SPRATLEY, JJ.

S. H. & Geo. C. Sutherland, of Clintwood, for plaintiffs in error.

James J. McLaughlin, of Erwin, Tenn., Burns & Lively, of Lebanon, and W. L. Rush, of Clintwood, for defendant in error.

HUDGINS, Justice.

The administrators of Cora Hall and Claude Mullins, who were killed at a grade crossing, brought separate actions for death by wrongful act, which were tried together, resulting in verdicts for defendant, the Clinchfield Railroad Company. Plaintiffs in the lower courts obtained these writs of error.

At the conclusion of the introduction of evidence, the trial court sustained defendant's motion to strike. This ruling constitutes the only assignment of error.

Plaintiffs contend that when a trial court eliminates all evidence from consideration by a jury, it invades the province of the jury and passes on the weight of the evidence, and is in effect a denial of plaintiffs' right to have a civil controversy settled by a jury.

Consideration of the motion does, in a measure, involve the weighing of evidence for the purpose of ascertaining whether or not a plaintiff has introduced sufficient evidence to sustain a verdict if one were based thereon. The motion to strike is the logical sequence of the abolition of the scintilla doctrine. Judge Keith, in sounding the death knell of this absurd ruling in Virginia, said in Chesapeake & O. Ry. Co. v. F. W. Stock & Sons, 104 Va. 97, 108, 51 S.E 161, 165: "It is true that what is known as the 'scintilla doctrine' has heretofore prevailed in this state, by force of which courts have been required to give instructions, though the evidence by which they were to be supported was such that a verdict founded upon it could not be maintained. In other words, a trial court might, under what is known as the 'scintilla doctrine, ' be reversed for failure to give an instruction which rightly propounded the law, and then be again reversed for sustaining a verdict in obedience to the instruction, because not supported by sufficient evidence. Such a doctrine does not seem consonant with reason, nor promotive of good results in the administration of justice."

The practical use of the motion is now firmly established in this jurisdiction. Its restrictions and limitations in application are fully stated in the following authorities: Fleshman v. Bibb, 118 Va. 582, 88 S.E. 64; Green v. Smith, 153 Va. 675, 151 S.E. 282; Limbaugh v. Commonwealth, 149 Va. 383, 140 S.E. 133; Barksdale v. Southern Railway Co., 152 Va. 604, 148 S.E. 683; Buchanan v. Wilson, 159 Va. 49, 165 S.E. 422; Catron v. Birchfield, 159 Va. 60, 165 S.E. 499; Mears v. Accomac Banking Co., 160 Va. 311, 168 S.E. 740; Virginia E. & P. Co. v. Mitchell, 159 Va. 855, 164 S.E. 800, 167 S.E. 424; Bray v. Boston Lumber & Builders' Corp., 161 Va. 686, 172 S.E. 296; Leath v. Richmond, etc., Railroad Co., 162 Va. 705, 174 S.E. 678; Richardson v. Appalachian Electric Power Co., 163 Va. 394, 175 S.E. 727, 176 S.E. 471; Ward v. Clark, 163 Va. 770, 177 S.E. 212; Rawle v. McIlhenny, 163 Va. 735, 737, 177 S.E. 214, 98 A.L.R. 930; Walton v. Walton, 168 Va. 418, 191 S.E. 768.

The vital question presented in this record is whether plaintiffs' evidence is sufficient to support a verdict finding that defendant failed to give the grade-crossing signals as required by Code, § 3958.

The general description of the scene at and near the crossing may be stated thus: The railroad runs about east and west on the south bank of McClure river, and parallel with it. On the south side of the river and paralleling it, is a ridge of hills, referred to in the evidence as the mountain, which are intersected by a sharp hollow leading from the top of the mountain down to the river. The highway runs down this hollow, between steep, tall ridges on either side, across the railroad and then across the river. The railroad track from Clinchco station, which is some 2, 150 feet east of the crossing, turns sharply to the southwest and then turns back to the northwest, coming around the end of the ridge standing to the east of the highway before reaching the crossing. The passenger train was running toward the west, while plaintiffs' intestates were in a 1930 Ford coupe driven by Clement Anderson approaching from the south. The highway intersects the right of way.just west of the north end of this ridge at right angles. To the right of the occupants of the car the ridge between the highway and the right of way prevented them from seeing an approaching train any appreciable distance down the track until the coupe was within 15 to 20 feet of the crossing. From the top of the mountain, some 300 yards, down to the right of way, the highway descends at a steep grade until within 25 to 30 feet of the rails and then crosses the right of way on a level.

The only evidence for plaintiffs worthy of consideration as to the negligence of defendant is the testimony of Clement Anderson, the driver of the coupe. He testified that about 6 p. m. on November 8, 1937, he was driving the coupe northwardly, with Claude Mullins sitting next to him and Mrs. Hall, with a small child on her lap, occupying the right end of the seat. As he approached the...