C. & O. Ry. Co. v. Hewin

• Citation: 152 Va. 649
• Court: Virginia Supreme Court
• Decision Date: 13 June 1929
• Parties: THE CHESAPEAKE AND OHIO RAILWAY COMPANY v. J. THOMAS HEWIN, ADMINISTRATOR OF MATTIE LOGAN, DECEASED.

Page 649

152 Va. 649

THE CHESAPEAKE AND OHIO RAILWAY COMPANY v. J. THOMAS HEWIN, ADMINISTRATOR OF MATTIE LOGAN, DECEASED.

Supreme Court of Virginia, Wytheville.

June 13, 1929.

1. STATUTES — Construction — Statute Viewed as a Whole — Words Given their Ordinary Meaning. — It is one of the fundamental rules of construction of statutes that the intention of the legislature is to be gathered from a view of the whole and every part of the statute taken and compared together, giving to every word and every part of the statute, if possible, its due effect and meaning, and to the words used their ordinary and popular meaning, unless it plainly appears that they were used in some other sense. If the intention of the legislature can be thus discovered, it is not permissible to add to or subtract from the words used in the statute.

2. STATUTES — Construction — Conditions which make Legislation Necessary — Inconvenience or Unreasonableness of a Particular Construction. — Conditions which make legislation necessary are at times important, particularly when the meaning of words is obscure or when they are susceptible of more than one definition, and in such circumstances the inconvenience or unreasonableness of any particular construction should be considered.

3. STATUTES — Construction — Primary and Ordinary Definitions of Words. — Primary and ordinary definitions of words are to be adopted unless their context and the conditions in which they are used appear to make some more meticulous construction necessary.

4. WORDS AND PHRASES — "In." — "In" is a word of indeterminate meaning. One who crosses Broad street, for the time being is in it, but certainly "in" is not always a synonym for "across." One may go in that street for miles and never cross it.

5. RAILROADS — In a Street — Crossing a Street. — A city ordinance limited the speed of trains "upon a railroad or rail-track in a street" to four miles an hour. Plaintiff contended that this ordinance applied to a train crossing a street. Conceding that "in," unqualified, is an indefinite preposition, and waiving the inconvenience which followed the construction for which plaintiff contended, that which was indefinite in the ordinance was made definite by its context, as the word "upon" was also used. To describe a train crossing a street as running upon a track in it, would be singularly inapt.

6. WORDS AND PHRASES — "Crossing" — "In." — "Crossing," when applied to highways and railways, is of unmistakable import. It is an accurate expression commonly employed in statutes and elsewhere to fit a particular situation, and for it "in" is an unsatisfactory substitute.

7. CROSSINGS — Speed of Train — Whether Ordinance Regulating Speed of Engines in a Street Applies to Crossings — "In" in Sense of "Along" — Case at Bar. — The instant case was an action for the death of a passenger in an automobile killed by an engine of defendant crossing a street in the city of Richmond. An ordinance of the city of Richmond (City Code of 1910, section 1, chapter 39) forbids an engine or other vehicle to be drawn or propelled upon a railroad or rail-track in a street at a greater rate than four miles an hour. The trial court thought this ordinance limited the speed of all trains at crossings to four miles an hour and so told the jury.

Held: That the trial court was in error; that the ordinance merely limited the speed of trains running longitudinally upon the street; that "in," as used in the ordinance, should be construed as meaning "along" rather than "across."

8. RAILROADS — Municipal Corporation — Ringing Bell — Crossing Single Street — Crossing at Street Intersections. — An ordinance of the city of Richmond (City Code of 1910, section 1, chapter 39) provided that "every locomotive engine put or placed upon a railroad or rail-track in the city shall have attached thereto a bell of thirty pounds weight, at least, and such bell shall be rung whenever the said engine is about to pass the crossing of any two streets, and shall continue ringing until such engine shall have passed such crossing; and if any engine shall pass across any street in this city, without first ringing and continuing to ring said bell, in manner aforesaid, the owner" should be fined. Plainly, "in manner aforesaid" has no reference to locality but to the manner in which the bell is to be rung — that is, it must be rung continuously where a single street is crossed, just as it must be rung when intersecting streets are.

9. AUTOMOBILES — Passengers — Imputable Negligence. — The instant case was an action for the death of plaintiff's decedent in an automobile accident when she was attending a funeral. Decedent was but a passenger. The car was secured by the undertaker and driven by his chauffeur, who chanced to be the owner. There was no joint enterprise and decedent had no control whatever over the automobile in which she rode.

Held: That if it be conceded that the chauffeur was grossly negligent, such negligence could not be imputed to decedent.

10. AUTOMOBILES — Crossing Accident — Contributory Negligence — Case at Bar. — The instant case was an action for the death of plaintiff's decedent in a crossing accident. Decedent was a stranger to the physical situation and had no knowledge of the danger.

Held: That decedent was not guilty of contributory negligence.

11. AUTOMOBILES — Crossings — Negligence of Chauffeur — Concurring Negligence of Defendant Railroad. — The instant case was an action for the death of plaintiff's decedent in a crossing accident. Defendant railroad contended that it was not liable if the negligence of the driver of the automobile in which decedent was riding was not a concurring cause but was the sole proximate cause of the accident. This is true; to answer for one's own sins is enough. Of course, the defendant is not liable unless that negligence in some degree contributed to the accident.

12. AUTOMOBILES — Crossings — Negligence of Chauffeur — Concurring Negligence of Defendant Railroad. — The instant case was an action for the death of plaintiff's decedent in a crossing accident. Defendant railroad contended that the negligence of the chauffeur was the sole cause of the accident. But it was necessary that the bell be rung, and if the jury was of the opinion that it was not rung, then the court could not say, as a matter of law, that this dereliction had nothing to do with the accident; that the driver would not have heeded its warning, and also it was for the jury to say whether the right of way was cleared of trees and bushes, as required by ordinance.

13. APPEAL AND ERROR — Negligence — Instructions — Error in One Instruction as Reversible Error — Case at Bar. — The instant case was an action for the death of plaintiff's intestate in a crossing accident. The jury, by its verdict for plaintiff, found that the defendant was guilty of negligence, but it was impossible to say what particular act of negligence it believed had been established. The trial court erroneously instructed the jury that plaintiff was negligent if it did not observe a speed ordinance. But the jury might have thought that the statutory signal of approach was not given, that the right of way was not cleared of trees and bushes, or that the train was running at a reckless speed independent of the ordinance.

Held: That under these circumstances the wrong instruction was prejudicial error.

Error to a judgment of the Law and Equity Court of the city of Richmond. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Leake & Spicer, for the plaintiff in error.

Smith & Gordon, for the defendant in error.

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

Plaintiff's decedent, Mattie Logan, lived in New York and was a stranger to the physical environments of Richmond, whither she came in February, 1926, to attend her sister's funeral. Services were held at a church in the central portion of that city, after which the funeral cortege moved over Magnolia street and across defendant's main line to Woodlawn cemetery, whence it returned along the same road. It was on this return that the accident occurred. She was in a car with five other colored passengers, driven by Fred Goodman, its owner. This automobile followed the hearse and was struck at Magnolia street crossing by a freight train going into Richmond, Richmond, was totally destroyed and Mattie Logan killed. Hence this action, which has terminated in a verdict and judgment for the plaintiff.

There is some conflict as to the volume of traffic in this street, and there is also conflict as to the speed of the train which did the damage, but that it far exceeded the limit fixed by an ordinance of the city of Richmond, if it applies, is not in dispute. That ordinance appears in the City Code of 1910, as section 1 of chapter 39. It is in evidence, and so much as seems pertinent reads as follows:

"If any engine or other vehicle be drawn or propelled upon a railroad or rail-track in a street at a greater rate than four miles an hour, the person who does it or causes it to be done, or assists in doing it, or causing it to be done, shall pay a fine of ten dollars. Every locomotive engine put or placed upon any railroad or rail-track in the city shall have attached thereto a bell of thirty pounds weight at least, and such bell shall be rung whenever the said engine is about to pass the crossing of any two streets, and shall continue ringing until such engine shall have passed such crossing; and if any engine shall pass across any street in this city without first ringing and continuing to ring said bell, in manner aforesaid, the owner of the said engine, as well as the person then having the control, conduct, and management thereof, shall each be fined not less than five nor more than twenty dollars; and if any person shall blow, sound or use, or cause to be blown, sounded or used, by means of, or with steam, any whistle or other thing upon any...