Chesapeake & O. Ry. Co. v. Kinzer
| Decision Date | 14 June 1965 |
| Citation | 206 Va. 175,142 S.E.2d 514 |
| Court | Virginia Supreme Court |
| Parties | CHESAPEAKE AND OHIO RAILWAY COMPANY v. James L. KINZER. |
Aubrey R. Bowles, III, Richmond (Aubrey R. Bowles, Jr., Meade T. Spicer, Jr., Bowles, Boyd & Herod, Richmond, on brief), for plaintiff in error.
Frank C. Maloney, III, Richmond (Allen, Allen, Allen & Allen, Richmond, on brief), for defendant in error.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.
James L. Kinzer, plaintiff, brought this action against Chesapeake and Ohio Railway Company, defendant, for damages for injuries suffered by him when the truck he was driving was struck by defendant's train at a crossing in the city of Staunton. On trial to a jury he recovered a verdict for $47,500, on which the court entered judgment, and we granted defendant a writ of error.
Under its assignments of error defendant contends (1) that the evidence was not sufficient to prove it guilty to negligence; (2) that the plaintiff was guilty of contributory negligence as a matter of law; and (3) that the court erred in submitting to the jury an issue of comparative negligence and committed 'other material errors.'
The accident occurred August 4, 1960, at about 11:20 a. m., where a street called Summerson Row crosses defendant's tracks. The tracks run generally east and west and the street north and south. The crossing is approximately a block north of State Highway No. 250. The plaintiff, Kinzer, was driving a large truck loaded with logs going north toward the crossing and was struck on the crossing by the train coming from his right, or east. The truck was described as an extra heavy duty 'ten-wheeler,' twenty-eight feet long, having fifteen forward gears, with two transmissions, and weighing with its load about 45,000 pounds. The driver's seat was about eight feet from the front bumper of the truck.
The street over the crossing was 16 feet 8 inches wide and was crossed by two tracks of the defendant, the main line on the north and a sidetrack on the south. The distance between the north rail of the sidetrack and the south rail of the main line track was 13 feet, 6 inches. The train, which came into the crossing on the main line, was a local freight composed of a Diesel engine and fourteen cars, together some six hundred feet long. The evidence for the plaintiff was that its speed was thirty to thirty-five miles an hour. Defendant's evidence was that its speed was eighteen to twenty miles an hour.
There were no signals at the crossing to warn of an approaching train. There was a crossarm sign northwest of the crossing to give notice of the presence of the crossing. The crossing was heavily traveled by trucks and cars, and the plaintiff had driven over it two or three times previously.
The street was downgrade from Highway 250 to the crossing and the view to the right, as the vehicle approached the tracks from the south, was obstructed. A mesh wire fence extended along the right-hand, or east, side of the street to within about ten feet of the sidetrack and then extended east about sixty-two feet along the sidetrack to enclose a lumber storage shed which faced the tracks and connected with Lowe's Staunton Warehouse, a structure with three gabled ends, which reached to within a few feet of the sidetrack and was solidly planked on the west side facing the street. The sidetrack was for the purpose of placing cars to serve this warehouse.
In the cab of the truck and sitting to the right of the driver on the side from which the train came was William T. Bowling, the owner of the truck, who was familiar with the crossing. The plaintiff and Bowling testified in substance that they pulled down to the sidetrack and stopped at five to seven feet from the near rail; that a boxcar was sitting on the siding and it and the structures mentioned obstructed their view to the east; that the windows of the truck were down and they listened and heard nothing, so with the motor in next to the lowest gear they eased over to the main line and stopped again, where the front of the truck was within six to eight feet of the south rail of the main line, which would put them as they sat in the cab fourteen to sixteen feet back from the rail; that the boxcar still obstructed their view so they could see only four hundred to five hundred feet down the track to their right; that they eased on up very slowly, continuing to look and listen, without hearing any sound of an approaching train, and when they first saw the train the front end of the truck was on the track; that there was not then time to stop, get the truck in reverse and back off, so Bowling yelled to the plaintiff, 'Pour it on her,' meaning to speed up and try to get across. They did so but failed to get out of the way and the train struck about the middle of the truck. The truck was carried down the track about one hundred feet and thrown over an embankment to the north of the track.
Pictures were introduced showing the crossing and its surroundings and the engine and truck after the accident.
Bowling testified that no bell rang and no whistle blew on the train before the collision. Plaintiff testified that a bell started ringing just before the train struck the truck, and, he said, 'about that time, bam, the train hit.'
The court correctly instructed the jury that it was the duty of defendant 'To ring the locomotive bell continuously from such distance east of the crossing as would give the plaintiff reasonable notice of the approach of the train.' Paragraph 4, Instruction No. 1, post. Cf. Norfolk, Etc., Belt Line R. Co. v. Freeman, 192 Va. 400, 407-408, 64 S.E.2d 732, 736; Norfolk So. Ry. Co. v. Lassiter, 193 Va. 360, 364, 68 S.E.2d 641, 643-644.
At the time of the accident two men were painting on the front of a building, shown in the pictures, situated seventy-five to one hundred feet east of the crossing and about thirty feet north of the main line track. They testified that they watched the train go by; that they looked and listened and no whistle was blown and no bell was rung, and that they were surprised that the bell did not ring.
The defendant admits that the whistle was not blown (because of an ordinance of the city of Staunton), but insists that the bell was rung in accordance with said ordinance. Defendant's engineer and fireman both testified that the bell was turned on at a point five hundred to seven hundred feet east of the crossing and that it continued to ring as the train proceeded into and through the crossing. The bell was operated by air and the fireman, who was operating the engine, was 'pretty sure' that he cut it off after the engine stopped.
Plaintiff's evidence that the bell was not ringing was not mere negative evidence, as defendant contends. It qualified as positive evidence and was sufficient to make an issue of fact to be decided by the jury. Virginian Ry. Co. v. Haley, 156 Va. 350, 157 S.E. 776; C. & O. Ry. Co. v. Hanes, Adm'r, 196 Va. 806, 86 S.E.2d 122; Kindt v. Reading Co., 352 Pa. 419, 43 A.2d 145, 162 A.L.R. 1 and Anno. at p. 9.
We are of opinion that the question of whether the plaintiff was guilty of contributory negligence was for the jury to determine. Defendant's argument to the contrary is that there was a point between plaintiff's second stop and the point at which he saw the train, at which the train was visible to the plaintiff had he looked. But the plaintiff and Bowling testified that when the truck reached a point at which they could see the train, the front of the truck was on the track or on the near rail of the track. Plaintiff testified that after the second stop he looked and listened and saw and heard no train, he 'revved' his engine up and let the clutch out; that he had to look ahead because there was a culvert there, and he didn't want 'to run off in that hole;' that
It was for the jury to say whether plaintiff exercised reasonable care in looking, in listening and in proceeding as he thus described.
A more serious question arises on the court's instructing the jury to the effect that if the defendant failed to blow the whistle on the engine then contributory negligence on the part of the plaintiff would not bar recovery but was to be considered in mitigation of damages. That was done by Instruction No. 1, reproduced in the margin. 1
It will be observed that one of the defendant's duties as stated in paragraph three of the instruction was to sound the locomotive whistle if, in the opinion of the jury, 'the circumstances of this case were such that a warning was reasonably appropriate and necessary to warn or to prevent the accident;' and, added the instruction, if the defendant 'failed to blow the whistle when reasonably necessary or failed to give timely warning by the ringing of the bell, or both,' then the jury must find for the plaintiff, and consider his contributory negligence, if any, in mitigation of damages.
This instruction was based on §§ 13-43 and 13-44 of the ordinance of the city of Staunton, set out in the margin. 2 They were enacted pursuant to the authority of § 56-414 of the Code of Virginia, which provides that every railroad company shall equip its engines with a bell and a whistle or horn, and directs when and how they shall be sounded with respect to grade crossings outside of incorporated cities and towns; 'and shall give such signals in cities and towns as the legislative authorities thereof may require.'
Section 56-416 of the Code of Virginia...
To continue reading
Request your trial
-
Wetlands Am. Trust, Inc. v. White Cloud Nine Ventures, L.P.
...terms.' " Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 605, 613, 644 S.E.2d 72, 75 (2007)(quoting Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965)). Accordingly, " '[w]hen an enactment does not encompass the entire subject covered by the common law, it a......
-
Farish for Farish v. Courion Industries, Inc.
...422 (1959). Statutes in derogation of the common law are not to be extended beyond their express terms. Chesapeake & Ohio Railway v. Kinzer, 206 Va. 175, 142 S.E.2d 514 (1965); Sellers v. Bles, 198 Va. 49, 92 S.E.2d 486 The learned trial court in Farish, during its hearing on the motion to ......
-
Shoemaker v. Funkhouser
...omitted); see also Isbell v. Commercial Inv. Assocs., 273 Va. 605, 613, 644 S.E.2d 72 (2007) (same); Chesapeake & Ohio Ry. Co. v. Kinzer , 206 Va. 175, 181, 142 S.E.2d 514 (1965) (same). Accordingly, along with a majority of courts that have considered similar statutes, we conclude that Vir......
-
Fisher v. Virginia Elec. and Power Co.
...construed and not to be enlarged in their operation by construction beyond their express terms.'" Id. (quoting C. & O. Railway v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514 (1965)). In a case of more recent vintage, the Circuit Court for the City of Richmond has continued the common law pract......