Chesapeake & Ohio Ry. Co v. Faison

• Decision Date: 25 April 1949
• Citation: 52 S.E.2d 865,189 Va. 341
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & OHIO RY. CO. v. FAISON.

52 S.E.2d 865

189 Va. 341

CHESAPEAKE & OHIO RY. CO.

v.FAISON.

Supreme Court of Appeals of Virginia

April 25, 1949.

.

Appeal from Circuit Court, York County; Frank Armistead, Judge.

Action by George L. Faison against the Chesapeake and Ohio Railway Company for loss of automobile in grade crossing accident. Judgment for plaintiff and defendant appeals.

Reversed and rendered.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Murray, Ford, West & Wilkinson, of Newport News, for plaintiff in error.

Ashton Dovell and B. D. Peachy, both of Williamsburg, for defendant in error.

EGGLESTON, Justice.

George L. Faison, sometimes hereinafter referred to as the plaintiff, recovered a verdict and judgment in the court below against the Chesapeake and Ohio Railway Company for damages for the loss of his automobile which was struck and demolished by one of its trains at a grade crossing in York county.

At the time of the accident the plaintiff was the owner and operator of a taxicab in Williamsburg. On January 29, 1943, about 9 p. m, he left Williamsburg for the purpose of going to the Navy Mine Depot near Yorktown. It was snowing and the visibility was poor. He proceeded southeastwardly along Highway No. 60, which runs along the southern or western side of the railroad tracks. Since his point of destination was to the north or east of the railroad, it was necessary that he cross the tracks. He passed Bell's crossing, which was the first crossing just east of Williamsburg, and turned left at Levinson's crossing, which he thought was a public crossing and a connecting link between Highway No. 60, on the southern or western side of the railroad, and Highway No. 168 on the northern or eastern side of the tracks. After he had crossed the first of the two tracks at this crossing and had reached the second, he observed a gate blocking his passage to Highway No. 168. Finding the gate locked and there being insufficient space within which to turn around, he attempted to back his car across the crossing to Highway No. 60, whence he had come. In doing so one of the wheels of the car ran off the edge of the paved portion of the crossing, the car became stalled on the eastbound railroad track, and was struck by a train before it could be removed.

There was no charge of negligence in the operation of the train. The gravamenof the action was that the crossing was constructed by the Railway Company "for the use of the public;" that at the company's "invitation" and with its "knowledge and consent" it had been "extensively used by the public;" that the company negligently "caused a gate to be erected across this crossing, " and to be locked during the nighttime; that the plaintiff, "having mistaken it for a different crossing, and not knowing of the gate, " drove his car thereon during the nighttime and was "trapped" by the gate; that by reason of the "roughness and narrowness of the crossing, " which the Railway Company "negligently permitted to exist, " he was unable to turn around on the crossing; and that in attempting to back his car from the crossing it "became wedged between the rails" and was struck by the passing train.,

The main defense of the Railway Company was that this was a private or farm crossing, constructed for the exclusive use of an adjacent property owner, G. B. Levinson, his servants and employees; that it had required Levinson to erect the gate across the crossing in order to prevent public use of it; that the plaintiff was a trespasser or bare licensee, using the crossing at his own risk; and that as to him the Railway Company was guilty of no breach of duty or negligence in permitting the erection of the gate and the obstruction of the crossing.

Over the objection of counsel for the Railway Company the lower court submitted to the jury for their determination whether, under the evidence, there was such public use of the crossing as to constitute it a public crossing, and if so, whether the Railway Company, in permitting the gate to be erected and locked, was guilty of negligence which was the proximate cause of the collision.

The position of the Railway Company in the court below was, and before us is, that the evidence is insufficient to support this instruction and to sustain a verdict predicated upon a finding that this was a public crossing, or that it was used by the public as such, and that the Railway Company knew or should have known of it.

The crossing passes over the main line of the Railway Company, about five miles east of Williamsburg. At this point two railroad tracks, running approximately northwestwardly or southeastwardly, are bordered respectively on the south or west by Highway No. 60, and on the north or east by Highway No. 168.

The evidence is undisputed that the crossing was originally constructed as a farm crossing and led from Levinson's farmhouse, on the north or east side of the Railway Company's right of way, southerly across its tracks to Highway No. 60, which was formerly a county road. The crossing gave Levinson access to his farm lands on the south or western side of the railroad and Highway No. 60.

About 1937, Highway No. 168 was constructed along the northern or eastern side of the railroad. It ran through the Levinson farm and intersected the farm crossing. Thus the crossing became, physically speaking, a connecting link between the two highways. But it is agreed that at that time it was not converted into or used as a public crossing. On the contrary, about two years prior to this accident, the Railway Company barricaded the crossing and it remained closed for an undisclosed period. Then, upon the insistence of Levinson, and in order to give him and his employees a convenient...