Atl. Coast Line R. Co v. Grubbs.&dagger

• Decision Date: 14 March 1912
• Citation: 74 S.E. 144,113 Va. 214
• Court: Virginia Supreme Court
• Parties: ATLANTIC COAST LINE R. CO. v. GRUBBS.&dagger

74 S.E. 144

(113 Va. 214)

ATLANTIC COAST LINE R. CO.

v.GRUBBS.†

Supreme Court of Appeals of Virginia.

March 14, 1912.

1. Railroads (§ 348*)—Crossing Accident-Contributory Negligence.

In an action for injuries to a traveler in a collision at a railroad crossing, evidence held to sustain a finding that plaintiff was not negligent.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*]

2. Railroads (§ 346*)—Crossing Accident-Contributory Negligence — Burden of Proof.

Contributory negligence in an action for injuries at a railroad crossing is an affirmative defense, the burden of maintaining which is on the defendant.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1117-1123; Dec. Dig. § 346.*J

3. Trial (§ 156*) — Contributory Negligence—Questions of Law or Fact.

When a consideration of the evidence in a negligence case is taken from the jury by a demurrer to the evidence, if the jury could have found therefrom that plaintiff was free from negligence contributing proximately to the causes of his injury, the court is bound to so find.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 354-356; Dec. Dig. § 156.*]

4. Railroads (§§ 314, 328*)—Crossing Accident—Care Required.

Where a railroad crossing and the view approaching it are obstructed, a higher degree of care is required of both the traveler and railroad company; the degree of caution required being in proportion to the danger, obstructions, noises, etc.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 905, 1057-1070; Dec. Dig. §§ 314, 328.*]

5. Interest (§ 21*)—Damages—Verdict.

Under the express provisions of Code 1904, | 3390, the damages awarded in an action for injuries bear interest from the date of the verdict.

[Ed. Note.—For other cases, see Interest, Cent. Dig. § 42; Dec. Dig. § 2l.*]

Error to Hustings Court, Part 2, of Richmond.

Action by H. L. Grubbs against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Modified and affirmed.

Wm. B. McIlwaine and E. P. Cox, for plaintiff in error.

Geo. C. Gregory and Samuel A. Anderson, for defendant in error.

CARDWELL, J. H. L. Grubbs brought this action in 1908 against the Atlantic Coast Line Railroad Company and the Norfolk & Western Railway Company, jointly, to recover damages for personal injuries alleged to have been sustained by the plaintiff because of the negligence of the defendants. Later the plaintiff filed an amended declaration against the Atlantic Coast Line Railroad Company alone; the case having been dismissed as to the Norfolk & Western Railway Company.

At the trial of the cause upon the issue joined on the amended declaration, the defendant demurred to the evidence, filing its grounds of demurrer, in which demurrer the plaintiff joined. The jury assessed the plaintiff's damages at $3,000, subject to the opinion of the court on the demurrer to the evidence, and the court, overruling the demurrer, entered judgment for the plaintiff, to which judgment this writ of error was awarded.

By agreement of counsel for the respective parties appearing in the record, all questions raised on the pleadings, except the demurrer to the evidence, are waived, and therefore the sole question for consideration here relates to the action of the trial judge in overruling the demurrer to the evidence and entering judgment thereon for the plaintiff.

The plaintiff, an employé of the Eagle Steam Laundry, Inc., on the morning of Thursday (Thanksgiving Day), November 28, 1907, about 9 o'clock, was driving a gentle horse hitched to a closed wagon belonging to the laundry company eastwardly along Hull street, in what was then the city of Manchester, but subsequently became a part of the city of Richmond, and at the point where the defendant's line of railroad crosses Hull street at right angles, a regular scheduled train of the defendant, commonly known as the "Cannon Ball" train, running about one minute behind its schedule time, collided with the wagon which the plaintiff was driving, and he was thrown to the ground and injured.

At the point of the accident the defendant's railroad track has the general direction of north and south, while Hull street has the general direction of east and west, and along the center of Hull street and over the railroad tracks crossing it a trolley street car line is operated. Pursuant to an ordinance of the city of Manchester requiring the defendant to constantly keep its crossing of certain named streets, including Hull street, guarded by flagmen or proper gates, the defendant undertook to maintain gates at the Hull street crossing, which is a much used crossing. These gates are operated from a tower located north of Hull street and east of the railroad, at the northeast corner of the intersection of the railroad and Hull street; and just across the street from the tower to the south, on the same side of the railroad tracks as the tower, but setting back further from Hull street, is situated the defendant's depot. Three railroad tracks cross Hull street at this point; the middle one being the main track over which the defendant operates its through trains, and the other two being side tracks upon which cars are shifted and trains made up. On the Swansboro, or west, side of these tracks were two gates—a short one across the sidewalk and a long one across the greaterportion of the roadway, but leaving room enough to drive around it on that side when the gate was down. On the Manchester and Richmond, or east, side of the railroad were three gates—one across the sidewalk of Hull street, and two across the driveway of the street, entirely closing it when the gates were down.

On the occasion of the accident to the plaintiff, he was driving his laundry wagon along Hull street from the direction of the locality known as Swansboro towards the cities of Manchester and Richmond; and when he approached the gate in the street on the Swansboro side, which was down and where he stopped, a shifting engine, moving freight cars, was passing on the middle or the east track of the railroad, either pulling or pushing the cars attached to it to the south, but soon changed its direction and came back northwardly on the west track and across Hull street, stopping just as Hull street was cleared. Whether this train of cars stopped after clearing Hull street with its engine next to the street or its rear car is not by any means made clear by plaintiff's evidence, since his statement is that the rear car was next to the street, while other witnesses for him say that the engine was pushing the cars and stopped at the north side of the street after clearing it. Be this, however, as it may, for whether this train stopped with its engine or rear car next to Hull street, vision of a train approaching from the north on the main track was obstructed from the point at which plaintiff was standing with his wagon waiting for the street crossing to be cleared.

When plaintiff stopped with his horse at the gate across Hull street, an electric car coming also from the west, or Swansboro, side of the railroad, came up and stopped immediately behind his wagon. The evidence very clearly shows that, as soon as the freight cars cleared the street, the gate on the Swansboro side went up sufficiently high for plaintiff's wagon to pass under it, and he thereupon started across the railroad tracks with his horse in a trot, being urged on by the whipping of the reins upon his back, and at the same time the conductor of the electric car, E. V. Bowles, went forward, as was his custom and duty, towards the main line of the railroad with the view of signaling his car forward if the way was found to be clear. Bowles, testifying for the plaintiff in this cause, after stating that his car came down from Swansboro and stopped at the gate with plaintiff's wagon in front of his car, or almost in front of it, says: "There was a shifting engine pulling some cars by. After the shifting engine pulled by, the gates went up, and I went out to flag the motor-man across. * » * Then the laundry wagon drove by. I was right beside him. He and I went both across together. * * * Just as I got by the box car I saw the other train coming up. I jumped back out of the way. Just as I jumped back, the train hit the wagon and knocked it back over there. I got back out of the way myself. When I got back the gates were down. * * * He had let them down again." Then after stating that the gates were down when his car reached the railroad crossing, that when the cars pulled by and the gates went up plaintiff's wagon started across, and he started almost at the same time, Bowles says that the plaintiff did not go around the gate, and his statements are borne out by that of the plaintiff, and by other witnesses testifying for him who were eyewitnesses of what took place.

As to whether the gates on the Manchester side went up at the same time or not, five witnesses have testified, two of them for the plaintiff and three for the defendant; plaintiff's witnesses saying they "did not know whether they were up or down, " while defendant's witnesses state positively that they were down. There is evidence for the plaintiff tending to prove that the mist and smoke from the shifting engine impaired, if it did not obstruct, the view of the gates on the Manchester side by the plaintiff while standing at the gate on the Swansboro side. These gates at the Hull street crossing, as we have seen, were operated from a tower, erected and used for the purpose of keeping watch for approaching trains, and were to be lowered as the situation might require for the purpose of preventing travelers of Hull street from coming in contact or collision with railroad trains crossing the street. One Morgan, the employe of the defendant at the time of the accident out of which this suit arises, was in the tower at his post of duty a short while before the accident, but with the purpose in view of preparing a ...