Brammer's Adm'r v. Norfolk & W. Ry. Co

• Decision Date: 15 June 1905
• Citation: 51 S.E. 211,104 Va. 50
• Court: Virginia Supreme Court
• Parties: BRAMMER'S ADM'R. v. NORFOLK & W. RY. CO.

104 Va. 50

51 S.E. 211

BRAMMER'S ADM'R.

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

June 15, 1905.

1. Railroads—Crossings—Travelers—Care Required.

A public railroad crossing is of itself a proclamation of danger, requiring a person about to cross to use both his eyes and ears to ascertain the approach of a train.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1043-1056.]

2. Same—Death—Contributory Negligence —Failure to Look and Listen—Proximate Cause.

Where plaintiff's intestate drove a covered wagon onto a railroad crossing without looking or listening for the approach of a train which was plainly visible for a distance of from 280 to 300 yards when intestate was within 20 or 25 feet of the track, deceased's contributory negligence, and not the failure of the train crew to give signals, was the proximate cause of the accident.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1069, 1073.]

3. Same—Acts of SerVants—Negligence.

The act of a railroad fireman in "hooking" his fire as the engine emerged from a cut and approached a railroad crossing, which act was in the regular line of his duty, and temporarily prevented him from viewing the crossing, was not negligence.

4. Same—Last Clear Chance—Evidence.

Where deceased approached a railroad crossing at which he was killed from the side opposite to that on which the engineer sat, and the latter had no knowledge of deceased's peril until informed by the fireman, who did so as soon as, in the exercise of ordinary care, he could have ascertained the same, after which the engineer did everything possible to prevent a collision, defendant was not liable notwithstanding deceased's contributory negligence in going on the crossing.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1096-1099.]

Appeal from Circuit Court, Henry County. Action by Brammer's administrator against the Norfolk & Western Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Samuel A. Anderson, for appellant.

Henry G. Mullins and Wm. Gordon Robertson, for appellee.

KEITH, P. The accident by which plaintiff's intestate, M. L. Brammer, came to his death, occurred upon the track of the Norfolk & Western Railroad at the crossing of a public road a few miles west of Martinsville. Near the crossing is a small bluff, on the right hand of a traveler approaching the railroad from Smith's river. For a short distance this bluff cuts off a view of the railroad from a person going in the direction of Martinsville, and an engine coming from Martinsville is not visible to a person standing on the crossing until it comes out of a cut to the south, or east of south. As soon as it leaves the cut the engine is visible for the entire intervening distance. A man standing in the county road, or sitting in a vehicle in the road, 23 feet from the crossing, can see 800 feet towards the cut. At 20 feet from the crossing he can see 900 feet in that direction. At the cut there is a sharp curve, and a person walking in the road towards the railroad track can see an engine coming out of the cut towards him before he reaches the bluff. Approaching the railroad, he comes in plain view of the track up to the mouth of the cut. The farthest point from the track at which a view of the cut is relieved from the obstruction of the bluff is fixed by the testimony at 23 feet. Between this point and the track the view of the cut is entirely unobstructed.

On the evening of the accident, M. L. Brammer, a man in the possession of all of his faculties of sight and hearing, was approaching this crossing about 6 o'clock. There was nothing in the surroundings, save the bluff, to interrupt or to interfere with the full exercise of his senses either of sight or hearing. He was driving a two-horse covered wagon. The wagon sheet, according to the impression of one witness, was turned up a little on the sides. Whether it wasturned up sufficiently to enable a person sitting in the wagon to see to the right or the left is not stated. When seen by the witness Brown, Brammer was sitting in the front of the wagon; but later, at the crossing, at the time of the accident, he was not visible to other witnesses. According to one witness, who saw the collision, and at the time was about 15 feet above the crossing, as the wagon approached the railroad no driver was visible. Her language is: "I saw a wagon coming, but did not see anybody driving. I saw it when it struck it." She could see into the front of the wagon, but could see no one at all, and did not see Brammer until he was knocked out by the collision. Another witness was in 15 steps of the wagon when the accident happened. He saw no one driving it. He was coming along behind the wagon, and, as a matter of course, did not enjoy the same advantage of position for seeing the driver of the wagon as did one standing in front of it. It was plain that the driver of the wagon was either sitting far back in his wagon or was lying down. Wherever he may have been, he was not sitting on the front end of his wagon, where he would be visible to observers, and best able to take such notice of his surroundings as would enable him to take proper precautions for his own safety. Approaching the crossing, Brammer did not stop. The witness who was following the wagon says that when he heard the whistle of the engine blow he thought "the wagon would stop right there for the train to pass, and he would overtake it, but he did not make any check at all, but kept straight on" and in a minute after the whistle blew the engine came out of the cut. The witness "still thought that the driver would see the engine and stop, but he did not make any stop at all. He just kept right on."

It is clearly shown by the evidence that if Brammer had been looking he could have seen the engine at a distance of 2S0 or 300 yards when he was within 20 or 25 feet of the track. There is positive evidence that the engineer blew the whistle for the crossing. There is much negative evidence that it was not blown. We will not undertake to determine this question, but will, for the purpose of this case, assume that it was not blown, and that in the failure to blow it the railroad company was guilty of negligence.

There is evidence to show that the engine, to which no cars were attached, was running down grade by force of gravity, at a rapid rate of speed. There is no evidence, however, to show that its speed was such as to constitute negligence per se. The only negligence of which the railroad company may be said to have been guilty consists in its failure to sound the whistle, as we have assumed to be the case.

But this negligence was not the proximate cause of the injury, because it was none the less the duty of Brammer, upon approaching the railroad, to look and listen—to take precautions, in other words, for his own safety —and, if he had done so, there is no doubt that he would both have...