Atlantic Coast Line R. Co. v. Withers

• Citation: 192 Va. 493,65 S.E.2d 654
• Decision Date: 18 June 1951
• Docket Number: 3786,Nos. 3783,s. 3783
• Parties: ATLANTIC COAST LINE RAILROAD CO. v. PENN L. WITHERS, JR., ET AL. and R. DAWSON TAYLOR v. PENN L. WITHERS, JR., ET AL. Record
• Court: Supreme Court of Virginia

Page 654

65 S.E.2d 654

192 Va. 493

ATLANTIC COAST LINE RAILROAD CO. v. PENN L. WITHERS, JR., ET AL. and R. DAWSON TAYLOR v. PENN L. WITHERS, JR., ET AL.

Record Nos. 3783, 3786.

Supreme Court of Appeals of Virginia

June 18, 1951.

J. M. Townsend and Russell T. Bradford, for the plaintiff in error, Atlantic Coast Line Railroad Co.

Preston P. Taylor, Richard B. Kellam and Leigh D. Williams, for the defendants in error, Penn L. Withers, Jr., et al.

Williams, Cocke & Tunstall, for the plaintiff in error, R. Dawson Taylor.

Preston P. Taylor, Richard B. Kellam, J. M. Townsend and Russell T. Bradford, for the defendants in error, Penn L. Withers, Jr., et al.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Penn L. Withers, Jr., plaintiff in the court below, brought his notice of motion for judgment against Atlantic Coast Line Railroad Company and Russell Dawson Taylor, defendants below, seeking to recover for personal injuries caused by the concurring negligence of the defendants in a collision between an automobile driven by the defendant Taylor, in which the plaintiff was a guest passenger, and a train of the defendant railroad company, at a highway grade crossing near New Hope, in the State of North Carolina. The defendant Taylor was a resident of Princess Anne county, Virginia, where venue of the suit was obtained.

Upon the completion of the evidence in the case the court overruled the separate motions of the two defendants to strike the evidence of the plaintiff, and a jury verdict in favor of Withers in the sum of $35,000 against both defendants was returned. The court overruled separate motions of the defendants to set aside this verdict and enter final judgment in their favor, or in the alternative, to set aside the verdict and grant the defendants a new trial. Judgment was entered on the verdict and a writ of error was granted by this court.

The defendant railroad company vigorously denies negligence on its part and insists that if any act of negligence was committed on the occasion defendant Taylor is the culprit. Taylor, on the other hand, just as vigorously denies negligence and points an accusing finger at the railroad. Both defendants are in accord, however, in their claim that even if any negligence can be traced to them, the plaintiff cannot recover as he is guilty of contributory negligence which should bar his recovery, and they are also in accord in their contention that the verdict is excessive.

The facts in the case are, generally, as follows: On November 5, 1948, in the afternoon, the exact time being in dispute, the plaintiff, Penn Latham Withers, Jr., left Virginia Beach with three friends as guests in a car driven by Dawson Taylor, one of the defendants. The party was en route to Chapel Hill, North Carolina. They were to visit friends that night and attend a football game the next day. Withers, the plaintiff, was seated by defendant Dawson Taylor, the driver of the car. Johnson, Walsh and Guy, the other members of the party, occupied the rear seat. There was some evidence as to several members of the party having had drinks in the afternoon. There is positive evidence that the driver, Taylor, did not have anything to drink, and the indulgence of all parties was of such minor character that it is not herein stressed.

The party stopped at Suffolk, Virginia, for gasoline, and they also stopped at a small town in North Carolina for dinner. After dinner they returned to their former positions in the automobile and continued their journey. They were using Route No. 98, which is a main, hard-surfaced, two-lane highway. This road runs between Rocky Mount and Durham, North Carolina. The accident occurred on this highway, between these two cities, at a place called New Hope.

The parties were not familiar with this route, and had no prior knowledge of the railroad crossing.

Many maps and pictures are among the exhibits graphically showing the situation at the scene of the accident. Route 98 runs generally northwest and southeast, and the railroad tracks run generally northeast and southwest. The road crosses the railroad at an acute angle. At the crossing the top part of the rail is level with the hard surface of the road. The crossing is level and smooth. For a mile or more along the highway as the automobile approached the crossing from the southeast, the road was straight and level, with a very slight ascending grade within a few hundred feet of the crossing.

On the left of the road approaching the crossing at a distance of 140 feet therefrom was a combination gasoline service station and store. The front of this establishment was equipped with very bright lights. The night was dark and overcast. The evidence is in conflict as to the speed of the automobile at and before the time of the accident. An effort to show excessive speed is put forward by the railroad. This defendant states that the weight of evidence shows that the party left Virginia Beach at 3:30 p.m., that the collision occurred around 7:45 p.m., and that as the distance between Virginia Beach and New Hope, North Carolina, the place of accident, was approximately 180 miles, of necessity the automobile had to travel at an excessive speed.

Defendant Taylor gives this version as to what happened just prior to and at the time of the accident: 'Well, as has been previously established, I came over a hill and there was a downgrade, and as I was coming downgrade I noticed the lights of the service station on the left, and not being able to anticipate whether they would blind my vision I didn't slow up until just before I got to the filling station when I took my foot off the accelerator, and traveling at fifty-five miles or a little bit under you are traveling about eighty feet a second, and as I passed through there, after I got on the other side of it, I slammed on the brakes. * * * I slammed on the brakes because as I got on the other side (of the filling station lights) I saw the train at a position of about 120 feet from the train, * * * I angled to the left hand side of the road and hit the train at the right front end on the side of the car.'

The place of accident is on the Nashville or Spring Hope branch of the defendant railroad. The railroad's version of what happened is substantially as follows: The train consisted of 23 gondola and hopper cars loaded with stone of a grayish white color which was piled in the center of the cars some 6 to 8 inches above the black sides of the cars. The railroad at this point is a single track, from Rocky Mount to Lassiter (41 miles). There is a spur track branching off west of Route 98 and this comes back to the main line track east of the highway. There was an empty box car on the siding east of the highway and the orders were to pick up this car. The movement was in charge of trainman Bullard. The engineer pulled over the crossing, threw a ten-minute fusee in the road south of the crossing and stopped with the engine and some six cars east of the crossing. Bullard cut the engine and four cars from the train and signalled the engineer forward east past the switch point, threw the switch, and signalled the engineer back west on the siding until coupling was made with the empty box car.

Bullard found the hand-brake on the empty box car stuck and he could not loosen it with his hands. He signalled the engineer forward and the five cars were pulled east beyond the switch point and then shoved back to the body of the train. Several automobiles had come up to the crossing, so it was decided to cut the train and let them pass before further attempting to loosen the brake on the box car. He cut the train seven cars from the engine and signalled the engine forward (east), thus clearing the crossing. He then got a hammer from the engine and loosened the stuck brake on the box car. Then he went back to the crossing and signalled the engine back west with his lantern. It came back at a speed of from two to three miles per hour and he waited until the lead car was about the center of the highway and no automobiles were in sight. He then walked ahead of the seven cars to the end of the standing train which was about 30 feet west of the crossing. At this point he saw the lights of the oncoming automobile and heard the brakes when it was about at the service station. He waved his lantern at it. The automobile curved to the left and crashed into the train with a terrific noise. The west end of the seven cars was just a few feet from where he was standing so he took a couple steps and turned the angle cock to release the air and prevent the train from moving.

Bullard then ran to the automobile. He estimated the speed of the automobile to be 65 to 70 miles per hour when the brakes were applied, and that it hit the gondola at about 40 miles per hour.

The evidence of Bullard as outlined above is corroborated in part by Engineer Bridges and other members of the train crew.

This accident happened in North Carolina, hence the law of that State must be applied on the question of liability. Baise v. Warren, 158 Va. 505, 164 S.E. 655. In Virginia the liability of the host to his guest is based upon gross negligence. Boggs v. Plybon, 157 Va. 30, 160 S.E. 77. In North Carolina, ordinary negligence on the part of the host will support a verdict in favor of the guest. Sutton v. Bland, 166 Va. 132, 184 S.E. 231.

In North Carolina there is no comparative negligence rule in railroad crossing cases such as we have in Virginia, and contributory negligence therefore bars recovery.

North Carolina has adopted a rule designated 'Outrunning one's lights', where it is held in certain instances, that the operator of an automobile must operate it in such a manner and at such speed as will enable him to stop within the radius of his lights. Weston v. Southern Ry. Co., 194 N.C. 210, 139 S.E. 237.

While the above variations between the laws of Virginia and North Carolina are interesting, in both...