C. & O. Ry. Co. v. Barlow

• Decision Date: 15 January 1931
• Parties: THE CHESAPEAKE AND OHIO RAILWAY CO. v. M. L. BARLOW.
• Court: Virginia Supreme Court

Page 863

155 Va. 863

THE CHESAPEAKE AND OHIO RAILWAY CO. v. M. L. BARLOW.

Supreme Court of Virginia, Staunton.

January 15, 1931.

Present, Campbell, Holt, Epes, Hudgins and Gregory, JJ.

1. CROSSINGS — Whether Crossing Signals were Given — Conflicting Evidence — Verdict of Jury Conclusive. — In the instant case, an action arising out of a crossing accident, the evidence was in conflict as to whether the crossing signals were given.

Held: That a verdict of the jury for plaintiff settled this conflict against the defendant.

2. CROSSINGS — Look and Listen — Testimony of Plaintiff that he Looked and Continued to Look — Incredible Evidence — Case at Bar. — The instant case was an action arising out of a crossing accident. Plaintiff testified that he looked and continued to look for trains as he approached the main-line track. Comparing the respective speed at which the train and the automobile were traveling it appeared that when the automobile was thirty feet from the center of the main-line track the train was five times as far away and approaching five times as rapidly, and yet the plaintiff claims he did not see the headlight or rays of light therefrom and was unaware of the approaching train. Under these circumstances to believe that the plaintiff looked, and continued to look, and yet failed to observe the on-coming train is contrary to the common experience of mankind.

Held: That plaintiff's negligence was the sole proximate cause of the injury arising from the collision between the train and the automobile.

3. EVIDENCE — Judicial Notice — Incredible Evidence — Demurrer to the Evidence. — It has been repeatedly declared that courts are not required to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible. Though the case be heard as upon a demurrer to the evidence, the court will not stultify itself by allowing a verdict to stand, although there may be evidence tending to support it, when the physical facts demonstrate such evidence to be untrue, and the verdict to be unjust and unsupported in law and in fact.

4. CROSSINGS — Signals — Causal Connection between Failure to give Signals and Accident — Section 3959 of the Code of 1919. — Under section 3959 of the Code of 1919 if the statutory signals are not given the contributory negligence of plaintiff does not bar his recovery, but the failure of plaintiff to exercise due care may be considered in mitigation of damages. This section has been consistently construed to mean that there must be a causal connection between the failure to give the statutory signals and the injury. In no case has a recovery been allowed where the undisputed evidence showed that the plaintiff's negligence was the sole proximate cause of the collision. If the plaintiff sees that the train is approaching, the blowing of the whistle and the ringing of the bell can give him no further information, and if he attempts to cross the track and is injured the accident is the result of his own negligence, and the negligence of the company in failing to give the statutory signals cannot be said to be a contributing cause of his injury.

Error to a judgment of the Circuit Court of Hanover county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Leake & Spicer, for the plaintiff in error.

George E. Haw, for the defendant in error.

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

This is an action to recover damages for personal injuries and for the loss of an automobile sustained at a grade crossing by a collision between an automobile driven by the defendant in error and a freight train operated by the plaintiff in error. There was a verdict and judgment for the plaintiff below; the railway company assigns error. The parties will be referred to in the positions they occupied in the trial court.

The physical facts at and around the crossing are as follows. The right of way of the defendant company extends approximately east and west, with the public highway crossing it at right angles. Just south of the southern line of the right of way and about seventy-five feet east of the highway is a building referred to as Campbell's store. The right of way, which is approximately eighty feet wide, is on a level slightly above the highway; there are three sets of rails at this point, with the main-line track in the center. From a point thirty feet south of the crossing there is an unobstructed view of the tracks to the east for some 450 feet. The crossing is near the western terminus of a curve and 165 feet from the west end of the station platform at Hanover.

The evidence is in conflict as to whether the crossing signals were given. The verdict of the jury settles this conflict against the defendant.

There are numerous errors assigned, but in our view of the case it is only necessary to consider whether there was any causal connection between the negligence of the defendant and the injury the plaintiff suffered.

The accident occurred between 8:45 and 9:15 on the night of March 20, 1928. The plaintiff came out of Campbell's store and started his Chevrolet car, which was parked about fifteen feet in front of the store and facing the east, turned around, and attempted to cross the right of way from the south. He was struck by a freight engine pulling from twenty-five to thirty freight cars.

The defendant contends that the evidence of the plaintiff himself conclusively shows that his negligence was the sole proximate cause of the injury. He accounts for the accident thus:

"Q. Tell what you did when you started across the crossing.

"A. I started across; 1 looked, I don't know how many feet, but just before I got to the side-track I looked good both ways, didn't hear any train, didn't hear a sound. I was still in second gear. I pulled up the grade and looked all the time like anybody else would be doing. I got about that far across. (Indicating.) There was a big light at Campbell's store and dark as a dungeon down the railroad. Just as I got about two feet, with the front wheels across the main line, the light swung around in my face. Then no bell was ringing and I hadn't heard a sound. I knew I was hit. The last thing I remember I said to myself: `If the bell had been ringing I would not have been hit.' (Italics supplied.)

"Q. You don't know how far the train was from you when the light struck you?

"A. No, but it was not very far. There is a curve around there. It was throwing the light the other way all the time. As soon as it straightened up it was right at me. When it threw the light on me I knew the train was right at me.

"Q. It was throwing the light towards Jacob's store?

"A. Yes, sir.

"Q. The light did not hit you until just before it struck you?

"A. It looked like it was about ten or five yards.

"Q. Was there anything at Campbell's store which would interfere with your seeing clearly the light coming up the track — any light at Campbell's store?

"A. Nothing but the light he had." (Italics supplied.)

He stated further that he was running very slowly, about two or three miles an hour, and as he reached the first rail of the side-track increased his speed to about five miles an hour, and that at the speed he was going he could have stopped his car within two feet.

"Q. Now, Mr. Barlow, the first track that you passed, which I believe is known as the passing-track, you didn't see any train or any cars on that track, did you?

"A. I don't remember seeing any.

"Q. You saw the headlight on the engine?

"A. I don't remember. The light blinded me. I saw it coming around in my face. It was like somebody throwing a flashlight in your face.

"Q. It was a very strong light, was it?

"A. Yes, sir."

No one knows whether the plaintiff looked, and continued to look, for trains as he neared the tracks except the plaintiff himself. We accept, then, as an established fact that as he approached the main-line track the plaintiff looked and continued to look for trains. From his evidence, however, it will be seen that his account of what he saw is not clear and positive. He says that the train was throwing the light the other way all the time, as the headlight straightened up the train was right on him. When asked the direct question if he saw the headlight of the engine his answer was: "I don't remember. The light blinded me. I saw it coming around in my face." And again he said: "It was so dark down that track, either this light from Jacob's store or this light from the train was over there, I don't know which it was. It was dark down there; you couldn't see anything."

Jacob's store is about 100 feet north of the main-line track, from a point 275 feet east of the crossing. If the light from the engine was shining on Jacob's store when the plaintiff was within forty feet of the main-line track the engine was necessarily east of the depot and some distance from the crossing, in which event, at the speed the train was running, the plaintiff would have had ample time to cross the track in safety.

It is contended, however, in behalf of the plaintiff that he did not see the light from the on-coming train, and there are two reasons advanced in explanation of his failure to see. One is that the light at Campbell's store obstructed his vision. The proof shows that on the north side of the store, toward the railway right of way and back from the front of the store, there was an electric light of forty or fifty watt power, and in front of the store there was another light of sixty or eighty watt power. When the plaintiff first got in his car to leave the store its light may have obstructed his view slightly, but as he got further from the store and nearer the main-line track the influence of the store light necessarily grew less, and it is incredible to us that the illumination of this light was sufficient to prevent a person with normal vision, in...