Atlantic Coast Line R. Co. v. Bowen

• Decision Date: 12 March 1951
• Docket Number: No. 3751,3751
• Citation: 63 S.E.2d 804,192 Va. 162
• Parties: ATLANTIC COAST LINE RAILROAD CO. v. EDRIE BOWEN. Record
• Court: Virginia Supreme Court

Page 804

63 S.E.2d 804

192 Va. 162

ATLANTIC COAST LINE RAILROAD CO. v. EDRIE BOWEN.

Record No. 3751.

Supreme Court of Appeals of Virginia

March 12, 1951.

Denny, Valentine & Davenport and J. M. Townsend, for the plaintiff in error.

Sands, Marks & Sands, for the defendant in error.

JUDGE: MILLER

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

On January 22, 1947, about 4:00 o'clock p.m., an Oldsmobile sedan, owned and driven by J. C. Sheffield, was struck by a train of the Atlantic Coast Line Railroad Company, plaintiff in error, at a grade crossing on U.S. Route 60 near the city of Richmond, Virginia. The driver and Edrie Bowen, an occupant of the car, were injured and the automobile almost demolished.

From a verdict and judgment awarded defendant in error, Edrie Bowen, for damages she sustained, this writ of error was granted.

In addition to the driver and Edrie Bowen, the car was occupied by the latter's daughter, Jeanelle Bowen, and the driver's mother. They were all strangers in this vicinity and were en route to New York from Tupelo, Mississippi. They had started the previous afternoon about 4:00 p.m. and by three of them alternating as chauffeur, had driven without stopping except for meals and short periods of rest.

At the point of the mishap the highway extends in an easterly and westerly direction and over it there is much vehicular travel. The automobile was proceeding eastwardly toward Richmond. The railroad, which consists of two tracks, one for northbound trains and the other for southbound, runs generally in a northerly and southerly direction and crosses the highway at almost a right angle. The train was proceeding northwardly along the east track. It consisted of a diesel engine drawing freight cars and was traveling about twenty-five to thirty miles per hour.

Westwardly from the crossing the highway is straight and practically level for a considerable distance. In that direction two hundred and twelve feet from the northbound track and on the right (south) side of the highway, the Virginia State Highway Department maintained a round sign with the letters 'RR' upon it, and about one hundred and fifty-eight feet from that track, plaintiff in error maintained a white sign with black cross marks and the words 'Slow Down 5 Miles -- Va. Law' thereon. (Sec. 56-407, Code, 1950.) Under this lettering and written vertically on the post supporting the sign appear the letters and word 'RR Crossing'. Located thirty-three feet westwardly from the center of the northbound track on the south side of the highway is an automatic semaphore signal device also maintained by the company. It is equipped with a paddle upon which is written 'Stop.' The normal position of this paddle is upright and the device is operated by a track relay one-half mile south of the crossing. When a train approaching the highway arrives at that point, the relay (electrical circuit) is broken and the paddle falls to a horizontal position and the word 'Stop' appears thereon in red letters. Immediately after this collision the paddle was found in a horizontal position.

The semaphore signal (horizontal paddle) was located fourteen feet from the ground. There was testimony that it was too high to be seen from a closed automobile distant therefrom twenty feet or less and that it could not be easily seen from a distance of forty feet by one seated in such a car. It was also shown that the Virginia State Highway Department had considered this signal device inadequate to give the necessary warning to the traveling public at this location. It had during 1944 and at times subsequent suggested to the railroad company that the flashing light type of signal situated eight to ten feet above the tracks and generally used at such grade crossings be substituted therefor, but to no avail.

No sign commonly known as the 'crossbuck' which bears the words, 'Railroad Crossing' thereon was maintained as required by section 56-406, Code, 1950. That section, among other things, provides as follows:

'Every railroad company shall cause signal boards, well supported by posts or otherwise, at such heights as to be easily seen by travelers, and not obstructing travel, containing on each side, in capital letters, at least five inches high, the following inscription: 'railroad crossing', * * * to be placed, and constantly maintained, at each public highway where it is crossed by the railroad at the same level * * * so as to be clearly discernible to travelers approaching the railroad crossing from each direction at a distance of two hundred feet away; * * *.'

The day was clear and cold and the road dry. Skid marks ninety to one hundred feet long made by this car were found on the highway. They began on the southern half of the road and curved slightly to the north until they were about in the center of the highway when they reached the tracks, thus indicating where the automobile came in contact with the engine. The most westerly thirty to thirty-five feet of the skid marks were quite light, but the other two-thirds or thereabouts nearest the crossing were very dark.

The testimony disclosed and it is uncontradicted that as the train approached the crossing, its whistle and bell were sounded in compliance with the statutory requirement. (Section 56-414, Code, 1950.) After the collision, the windows of the car were proved to have been closed.

Only three witnesses to the accident testified. They were the engineer and brakeman, who were seated in the engine when the collision took place, and Jeanelle Bowen. The two members of the train crew first saw the automobile only a second or so before the collision and it was then within a few feet of the track. Defendant in error, who was seated in the rear, was asleep and did not see the train. Her daughter, who was on the front seat, had been asleep but awakened when the automobile was about two car lengths from the track and thus obtained but a momentary view of the train before the mishap. Neither J. C. Sheffield nor his mother appeared at the trial though unsuccessful efforts were made by defendant in error to obtain Sheffield's deposition in Mississippi. Thus there is no evidence as to what the driver was doing or saw as he approached the crossing except that indicated by the skid marks on the highway.

The case was submitted to the jury upon the primary issue of whether or not the company had been guilty of engligence which was a proximate cause of the mishap.

Over the objection of plaintiff in error the following instruction No. 3 was given:

'The Court instructs the jury that it is the duty of a railroad to provide adequate warning signals at dangerous railroad crossings. If, therefore, you believe from the evidence that this was a dangerous crossing, then the defendant railroad company had a duty to provide warning signals for the protection of travelers and to see that such signals were adequate. If, therefore, you believe under the evidence that this crossing was a dangerous crossing, then such signals were required at the crossing here involved, and if you believe that as maintained the semaphore light signal at this crossing was improperly located, difficult to see by a traveler over the highway using reasonable and proper care, or in any other wise inadequate to give timely warning of the presence of the crossing, then the defendant railroad company was guilty of negligence as to its maintenance.'

The company contends that it was guilty of no negligence that proximately caused or efficiently contributed to the collision. It admits that under the holding in Ivory Storage Co. v. Atlantic Coast Line R. Co., 187 Va. 857, 48 S.E. (2d) 242, it was negligent in failing to maintain the statutory crossbuck sign, but earnestly asserts that such omission was not a cause of the collision. That, it says, was solely due to the negligence of Sheffield. The company also admits that there was evidence to the effect that the semaphore signal device maintained by it was inadequate to warn the traveling public of the approach of trains, but it contends that this has not been proved to be a dangerous crossing or attended with any unusual hazard, and therefore, it was under no duty to maintain that or a more adequate signal device. Norfolk, etc., Ry. Co. v. Wilkes, 137 Va. 302, 119 S.E. 122; Atlantic Coast Line R. Co. v. Clements, 184 Va. 656, 36 S.E. (2d) 553; 44 Am. Jur., 'Railroads', sec. 520, p. 764.

In this respect it is also claimed that even if the semaphore signal was inadequate, that was not a proximate cause of the collision. Virginian Ry. Co. v. Haley, 156 Va. 350, 157 S.E. 776, and Southern Ry. Co. v. Berry, 172 Va. 266, 1 S.E. (2d) 261.

It is said that the purpose of the crossbuck sign is to give warning of the presence of the railroad track, and the purpose of the semaphore to warn of an oncoming train. With that we can agree. Yet, just inferences from the existence of the skid marks indicate that with the crossbuck sign absent, the driver in some way became aware of the existence of the track when some one hundred feet distant. However, it does not necessarily follow that when 90 to 100 feet away or when somewhat closer where the skid marks were still very light, he was then aware that a train was approaching, as insisted by the company. A fair and reasonable inference that the jury might have drawn was that he first became aware of the track and touched his brake and then later when apprised of the train and its dangerous proximity, the brakes were more forcibly applied and thus the light and heavy skid marks resulted. It is rather certain that when about 100 feet from the crossing, he was apprised of the existence of the track; but not necessarily the train. Without the warning crossbuck sign or a semaphore device deemed adequate for such a crossing, it appears that he did not discover the approaching train until the peril was imminent and the collision unavoidable.

We do not think it...