Belt Line Railroad v. Parker

Decision Date21 March 1929
Citation152 Va. 484
PartiesNORFOLK AND PORTSMOUTH BELT LINE RAILROAD COMPANY v. J. R. PARKER, ET AL.
CourtVirginia Supreme Court

1. COMMON LAW — Federal Common Law. — There is no body of Federal common law apart from the common law in the several States in the sense that there is a body of Federal statutes distinct from those of the States. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and it does not follow that the exclusive Federal jurisdiction takes the territory from out of its operation.

2. COMMON LAW — Federal Common Law — Common Law Prevailing in Territory Acquired by the United States. — The common law system of jurisprudence is followed in territory acquired by the United States unless set aside by the Federal Constitution or by some act of Congress. This rule is generally observed throughout the United States unless the territory in question, when acquired, was governed by some other system of laws, the civil law for example.

3. COMMON LAW — Federal Common Law — United States Army Base — Case at Bar. The instant case was an action for negligence. The alleged negligence occurred at the United States army base, physically within the corporate limits of the city of Norfolk. The base was purchased by the United States with the consent of the State, and jurisdiction was ceded to the United States by Acts 1918, page 568. The action was brought in the Circuit Court of the city of Norfolk. Service was had on both defendants in Norfolk. It was claimed that as the cause of action arose on a Federal reservation it could not be enforced in an action in the State court.

Held: That the State court might enforce in a transitory action a common law right which originated at the army base, and therefore the Circuit Court of the City of Norfolk had jurisdiction.

4. ACTIONS — Transitory Action — Action for Personal Injuries — Venue. — When the right is transitory, action may be brought wherever the defendant can be found, provided he is personally served with process, and an action for personal injuries being in its nature transitory is susceptible of being brought in any jurisdiction in which the defendant may be impleaded.

5. APPEAL AND ERROR — Judgment and Verdict Against the Evidence — Judgment and Verdict Sustained if the Evidence Substantially Upholds Them. — When the validity of a verdict and judgment turns upon the evidence, they must be sustained where they are substantially upheld by the evidence.

6. CROSSINGS — Negligence of Railroad — Failure to Give Warning Signal — Case at Bar. — In the instant case, an action for personal injuries incurred in a crossing accident, plaintiff and other witnesses testified that the customary warning was not given. Plaintiff testified that he was on the lookout and saw and heard nothing to indicate danger. There was evidence to the contrary for the defendant.

Held: That the jury might have found that the bell was not rung, and that this custom, relied upon by those familiar with the locality, was not observed.

7. CROSSINGS — Negligence of Railroad — Speed of Train — View of Crossing Obstructed — Case at Bar. — In the instant case, an action for personal injuries incurred in a crossing accident, there was evidence for the railroad that the engine was running slowly and under control. Plaintiff and other witnesses testified that the engine was traveling at the rate of twenty of twenty-five miles an hour.

Held: That the jury might have found it was negligence to approach a crossing in constant use at such a rate of speed, especially as there was a box car standing on the first track, which obstructed the view of the track upon which the accident occurred.

8. CROSSINGS — Negligence of Railroad — Speed of Train — Automobile Accident — Automobile not Overturned — Judicial Notice — Inherent Impossibility — Case at Bar. — In the instant case, an action for personal injuries incurred in a crossing accident, it was argued that the physical acts showed that plaintiff's estimates of the speed of the engine, which were that it was traveling at the rate of twenty or twenty-five miles an hour, were inherently improbable, because the automobile was not overturned but merely pushed some distance down the track and was able to leave under its own power, and further, because a passenger, who stood upon the running board of the automobile, had time to cross the track on which the engine was, and did so safely.

Held: That the Supreme Court of Appeals was not prepared to say how fast an engine must go before it overturns or destroys an automobile in collision. The passenger leaped forward and across the track at the moment of collision. It was possible in one jump to save himself.

9. CROSSINGS — Obstruction of View — Box Car Left on Track Obscuring View of Further Track — Case at Bar. — In the instant case, an action for personal injuries incurred in a crossing accident, it was not negligence in the railroad to leave a box car on the first track, obscuring the view of the second track upon which the accident occurred, but as a matter of fact the position of the box car did make the crossing more dangerous and did call for greater caution on the part of the railroad.

10. CROSSINGS — Whether Operating Engine Backwards is Negligence — Question of Law and Fact. — It is usually a question of fact as to whether or not it is negligence to operate a locomotive engine backwards with no one on the tender to signal its approach when crossing at grade a populous city thoroughfare, and in some circumstances it is negligence as a matter of law.

11. CROSSINGS — Primary Negligence of Railroad — Jury Held Warranted in Finding Defendant Guilty of Negligence — Case at Bar. — In the instant case, an action for personal injuries incurred in a crossing accident, from the evidence of the plaintiff it appeared that the accident occurred when defendant backed an engine over the crossing at a speed of from twenty to twenty-five miles an hour without warning, the view of the track being obstructed by a box car standing on another track, and collided with the automobile in which plaintiff was riding.

Held: That the jury was warranted in finding upon this evidence that the defendant was guilty of primary negligence.

12. CROSSINGS — Contributory Negligence of Plaintiff — Duty of Plaintiff to Look and Listen — Testimony of Plaintiff that He Did Look and Listen — Case at Bar. — In the instant case, an action for personal injuries incurred in a crossing accident, plaintiff testified that he both looked and listened; that when he first saw the engine with which the automobile collided he was six or eight feet from the track on which it was, and that he called to the driver to "Look out," but the driver neither stopped nor turned, though he did swerve slightly to the left.

Held: That plaintiff's testimony that he looked and listened must be accepted as true, and that plaintiff was not guilty of contributory negligence as a matter of law.

13. CROSSINGS — Duty of Driver to Stop — Duty of Passenger. — It is a driver's duty to stop if the physical situation is such as to make that necessary before he can in safety cross a railroad track; and it is for the jury to say within proper limits if it was necessary that the driver stop, but a passenger is not required to order the driver to stop unless the car appears to be out of control, or unless for some other reason danger appears to be imminent.

14. AUTOMOBILES — Crossings — Duty of Passenger. — All that can be required of a guest in an automobile, who has no control over it, to look and listen and warn the driver of approaching danger at a crossing.

15. CROSSING — Duty of Driver — Duty of Passenger — Looking and Listening — Case at Bar. — A passenger in an automobile, who both looked and listened on approaching a crossing, had the right to presume that the driver was exercising the same degree of care, and not until he had some cause to believe that this confidence was misplaced did the law require him to do more.

16. NEGLIGENCE — Imputable Negligence — Driver of Car and Passenger — Joint Adventure — Case at Bar. The instant case was an action for personal injuries incurred in a crossing accident. Plaintiff and another bought supplies from a storekeeper. The storekeeper told the driver of his automobile to take plaintiff and his companion and the supplies back to their boat. This the driver undertook to do and the accident in which plaintiff was injured occurred upon this trip. Plaintiff exercised no control over the car nor over the driver.

Held: That the negligence of the driver could not be imputed to plaintiff, as plaintiff and the driver were not engaged in a joint enterprise.

17. NEGLIGENCE — Imputable Negligence — Passenger and Driver in Automobile. — The negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver.

18. CROSSINGS — Contributory Negligence — Injury to Arm of Passenger in Automobile — Passenger Failing to Withdraw Arm with which He was Holding Oil Can upon Running BoardCase at Bar. The instant case was an action for personal injuries incurred in a crossing accident. Plaintiff, a passenger in an automobile was riding with his arm outside of the window holding an oil can upon the running board at the time of the accident. Plaintiff looked and listened upon approaching the crossing and warned the driver. It was argued for the defense that before the collision he had time to draw in his arm. But the imminence of the peril when discovered may have prevented, and doubtless did prevent, the exercise of good judgment by the plaintiff, and his failure under the circumstances should not defeat a recovery.

19. NEGLIGENCE — Contributory Negligence — Sudden Peril. — In all fairness, one who negligently places another in a position of sudden peril should not...

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