C. & O. Ry. Co. v. Pulliam

• Decision Date: 13 January 1947
• Docket Number: Record No. 3118.
• Citation: 185 Va. 908
• Court: Virginia Supreme Court
• Parties: THE CHESAPEAKE & OHIO RAILWAY COMPANY v. GEORGE PULLIAM.

Page 908

185 Va. 908

THE CHESAPEAKE & OHIO RAILWAY COMPANY v. GEORGE PULLIAM.

Record No. 3118.

Supreme Court of Virginia, Richmond.

January 13, 1947.

Present, Holt, C.J., and Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ.

1. CROSSINGS — Accidents at Crossing — Whether Road Across Defendant's Right of Way Was a Public Highway — Case at Bar. — In the instant case, an action for personal injuries sustained in a collision between an automobile driven by plaintiff and a passenger train operated by defendant at a grade crossing, defendant contended that the trial court committed reversible error in holding, as a matter of law, that the road across defendant's right of way was a public highway. Fifteen feet north of the tracks defendant had erected and maintained the usual grade crossing sign similar to the signs erected and maintained at all public highway grade crossings. The engineer in charge of the train involved in the accident testified that he had been operating the train for approximately three years and had habitually given the usual warning signals for public highway crossings when he approached the crossing. The evidence was not clear as to whether whistle posts had been erected on either or both sides of the crossing. The assistant division engineer of defendant company testified that the crossing was regarded by the officials of the railroad as a private crossing but the evidence of the plaintiff showed that the crossing was used daily by the public.

Held: No error.

2. CROSSINGS — Accidents at Crossing — Effect of Code Section 3959 — Abolition of Doctrine of Contributory Negligence. — Section 3959 of the Code of 1942 (Michie), stating the effect of failure of employees of a railroad to give statutory signals upon approaching a grade crossing, abolishes the doctrine of contributory negligence as a complete bar to recovery and introduces in a modified form the doctrine of comparative negligence.

3. WORDS AND PHRASES — "May". — The word "may" is prima facie permissive, importing discretion, but the courts construe it to be mandatory when it is necessary to accomplish the manifest purpose of the Legislature.

4. CROSSINGS — Accidents at Crossing — Construction of Code Section 3959 — "May" Construed as Mandatory. — In construing section 3959 of the Code of 1942 (Michie), stating the effect of failure of employees of a railroad to give statutory signals on approaching grade crossings and providing that the failure of the traveller to exercise due care "may be considered in mitigation of damages", the word "may" is mandatory and not merely permissive.

5. CROSSINGS — Accidents at Crossing — Instructions that Failure of Traveller to Exercise Due Care May Be Considered in Mitigation of Damages — Case at Bar. — In the instant case, an action for personal injuries sustained in a collision between an automobile driven by plaintiff and a passenger train operated by defendant, at a grade crossing, defendant assigned as error the ruling of the trial court in granting an instruction for plaintiff and in amending defendant's instruction. In both instructions the court told the jury that if defendant failed to give the statutory signals required by section 3959 of the Code of 1942 (Michie), then the failure of plaintiff to exercise due care "may" be considered in mitigation of damages.

Held: Error. The use of the word "may" in the instructions left the consideration of the alleged contributory negligence of plaintiff to the discretion of the jury instead of making it mandatory upon them to consider it in mitigation of damages.

6. CROSSINGS — Accidents at Crossing — Instructions that Failure of Traveller to Exercise Due Care May Be Considered in Mitigation of Damages — Case at Bar. — In the instant case, an action for personal injuries sustained in a collision between an automobile driven by plaintiff and a passenger train operated by defendant, at a grade crossing, defendant assigned as error the ruling of the trial court in granting an instruction for plaintiff and in amending defendant's instruction. In both instructions the court told the jury that if defendant failed to give the statutory signals required by section 3959 of the Code of 1942 (Michie), then the failure of plaintiff to exercise due care "may" be considered in mitigation of damages. The trial court, in its verbal instruction to the jury, construed the statute to be mandatory.

Held: That the fact that the trial court, in its verbal instruction to the jury, construed the statute to be mandatory, in its provision requiring the jury to consider the contributory negligence of plaintiff in mitigation of damages, did not cure the error. The jury took the written instructions of the court with them to their room, and, even if they had noted the difference between the oral instruction and the written instructions, they naturally would have given more weight to the latter.

Error to a judgment of the Circuit Court of Elizabeth City county. Hon. Frank A. Kearney, judge presiding.

The opinion states the case.

Lett, Murray & Ford, for the plaintiff in error.

Savory E. Amato and Ross A. Kearney, for the defendant in error.

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

This writ of error brings under review the proceedings of the trial in which George Pulliam recovered $7,000 for personal injuries sustained in a collision between an automobile driven by him and a passenger train operated by the Chesapeake & Ohio Railway Company at a grade crossing.

The parties will be designated as plaintiff and defendant according to the positions they occupied before the trial court. The plaintiff, having obtained a verdict, is entitled to have the facts stated substantially as follows: About 8:30 A.M. on December 7, 1944, plaintiff left the home of Dr. Traynham, his employer, driving a 1936 Ford car, and proceeded west about 300 feet along a dirt road parallel to defendant's right of way. He then turned right, stopped his car in approximately ten feet of the nearest rail, looked east and west and saw no train approaching. He saw an employee of defendant painting the crossing sign on the opposite side of the tracks. This employee, with his hands, motioned plaintiff to drive on across the tracks. Plaintiff, in low gear, started across the rails but, before completing the crossing, his car was struck by a westbound engine pulling ten passenger cars. The crew on the engine did not blow the whistle or ring the bell for the crossing.

Defendant contends that the trial court committed reversible error in holding, as a matter of law, that the road across defendant's right of way was a public highway.

The uncontradicted evidence establishes the following facts: In 1882, Thomas Tabb owned a large tract of land situated on the east side of Hampton creek in Elizabeth City county. On June 29 of that year he conveyed to defendant a 40-foot right of way through his entire farm. On June 25, 1883, Thomas Tabb conveyed to John Booker a triangular-shaped tract of land, containing eight acres, more or less, bounded on the north by the 40-foot right of way, and on the west, south and east by the waters of Hampton creek. The deed conveyed to the grantee a 12-foot right of way through the larger tract owned by the grantor to a public highway which later became known as Hampton avenue in East Hampton.

This private outlet for the 8-acre tract across the 40-foot right of way of defendant and through the tract of land formerly owned by Thomas Tabb became known as Linden street. A part of the land fronting on the west side of this 12-foot outlet and north of defendant's right of way was subdivided into lots on which dwellings were erected. The land on the east of the 12-foot strip and north of defendant's right of way is now used as a golf course. It seems that no one conveyed this 12-foot strip to the county or State, nor is there evidence tending to show formal dedication of any part of Linden street to public use. However, this 12-foot strip, called Linden street, on the north side of defendant's right of way is now included in the official map of the State highway system. It has been macadamed and maintained by the Highway Department for more than five years. This is sufficient to establish the fact that the 12-foot strip, or Linden street, is a public highway as far south as the defendant's right of way.

By mesne conveyances, the triangular-shaped, 8-acre tract south of defendant's right of way was conveyed to Doctors Wade L. Traynham and Willard P. Smith, with the center of the 12-foot outlet the dividing line between them. Each of these two men, with his family, resides on the land conveyed to him. Two other families live on these two tracts.

The 12-foot strip on the south side of defendant's right of way is a dirt road and extends north across defendant's right of way and joins the southern end of Linden street, making the crossing and the dirt road in appearance a continuation of the same street or highway.

The substance of defendant's contention is that a traveler on Linden street, going south, would be using a public highway until he reached the northern side of defendant's 40-foot right of way, when he would cross the right of way on a private crossing into the dirt road, which, to all intents and purposes, is nothing but Linden street extended; that a traveler going north on the dirt road would be using a private way until he crossed the grade crossing from south to north.

This situation has confused the users of this highway and the employees of the railway company. Fifteen feet north of the tracks defendant has erected and maintains the usual grade crossing sign similar to the signs erected and maintained at all public highway grade crossings. The engineer in charge of the train involved in the accident testified that he had been operating this train for approximately three years, and that he habitually gave the usual warning signals for a public highway...