Chesapeake & O. Ry. Co. v. Hanes

• Decision Date: 07 March 1955
• Docket Number: No. 4322,4322
• Citation: 196 Va. 806,86 S.E.2d 122
• Parties: CHESAPEAKE AND OHIO RAILWAY COMPANY v. RUDOLPH A. HANES, ALSO KNOWN AS R. A. HANES, ADMINISTRATOR OF THE ESTATE OF MALRIE VIRGINIA WRIGHT HANES, DECEASED. Record
• Court: Virginia Supreme Court

Page 122

86 S.E.2d 122

196 Va. 806

CHESAPEAKE AND OHIO RAILWAY COMPANY v. RUDOLPH A. HANES, ALSO KNOWN AS R. A. HANES, ADMINISTRATOR OF THE ESTATE OF MALRIE VIRGINIA WRIGHT HANES, DECEASED.

Record No. 4322.

Supreme Court of Appeals of Virginia

March 7, 1955.

Walter Leake and Meade T. Spicer, Jr., for the plaintiff in error.

Hirschler & Fleischer and Rooke, Merhige & Cole, for the defendant in error.

JUDGE: EGGLESTON

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

On December 1, 1952, at about 8:40 a.m., Malrie Virginia Wright Hanes, while driving her automobile southeastwardly along State Highway No. 652 and across the main track of the Chesapeake and Ohio Railway Company in Hanover county, Virginia, was instantly killed when her car was struck by the Diesel engine of an eastbound passenger train. In an action for wrongful death the administrator of her estate has recovered a verdict and judgment of $15,000 against the Railway Company which are before us for review. The only assignments of error we need consider challenge the sufficiency of the evidence to sustain the verdict and the rulings of the trial court on the instructions.

The collision occurred at what is referred to in the record as the 'Church' or 'Cool Springs' crossing just west of Atlee, a small station on the main line of the Railway Company between Charlottesville and Richmond. At this location the Railway Company maintains two parallel tracks, a main track carrying both east and westbound trains and a spur track or siding to the north of the main track. While actually the tracks here run almost north and south, they are referred to throughout the record and briefs as running east and west and will be so designated by us. The main line track west of the crossing is continuously straight for some 2,000 feet, beyond which it curves to the north. In conformity with the same directional designation it may be said that State Highway No. 652, the dirt road along which the decedent was proceeding, runs approximately southeast, crossing the railroad tracks at an acute angle and connecting with State Highway No. 637 which runs approximately east and west along the southern side of the right of way of the Railway Company. Highway No. 652 approaches the railroad tracks from the north on a three per cent upgrade.

As an automobile proceeding southeastwardly along Highway No. 652 reaches a point 325 feet from the crossing the driver's view of the railroad to the west, the direction from which the train involved in this collision came, is obstructed by an embankment and bushes until the automobile reaches a point about 100 feet from the northern rail of the spur track. After the automobile has passed the embankment, for the next 50 feet the driver has a view across a field of the railroad tracks to the west. Proceeding further toward the crossing the driver's view to the west is obstructed by a two-story frame dwelling which is located north of the right of way of the Railway Company and in the acute angle formed by the intersection of the northern line of the right of way and the western line of the highway. This building obscures the driver's view of the tracks to the west until the front end of the automobile reaches a point six or eight feet from the northern rail of the spur track or 25 to 30 feet from the main track. After having passed this building the driver by turning his head to the right has a clear view of the main track to the west for more than a quarter of a mile. Just north of the spur track and to the west of the highway crossing is a conventional 'crossbuck' sign.

The plaintiff's decedent was a woman forty years of age, in good health, and an experienced automobile driver. For six months prior to the accident she and her husband had lived on a farm about two miles west of the crossing. She was regularly employed in Richmond and drove her own automobile to and from work every day. In doing so she regularly used Highway No. 652, going over this crossing twice a day. Admittedly, she was thoroughly familiar with the crossing and its approaches. Her husband testified that when she left home that morning her car was 'in perfect condition' and 'running all right.' The weather was clear and cold.

As the decedent's car was on or passing over the crossing it was struck by the Diesel engine of the eastbound train which was some twenty minutes behind its schedule and operating at a speed variously estimated at from 55 to 70 miles per hour. The automobile was carried by the locomotive more than 2,000 feet along the track, was completely demolished, and the driver killed instantly.

In the trial court the main contention of the administrator was that the Railway Company was negligent in that it failed to give by whistle and bell the crossing warnings required by Code, § 56-414 (as amended by Acts 1950, ch. 476, p. 944), and that its negligence in this respect was a proximate cause of the collision which warranted a recovery under section 56-416. The two sections are copied in the margin. ¹ The administrator offered evidence which tended to show that the required statutory signals were not given. He contended that under the circumstances it was for the jury to say whether the failure to give the required signals was a proximate cause of the collision.

The Railway Company produced evidence which tended to show that the required signals were given. Moreover, it contended, even if such signals were not given, the decedent was guilty of negligence which was the sole proximate cause of the collision and barred a recovery.

Two witnesses testified that they were eyewitnesses to the collision, Walter H. Shaffer, who was standing near the crossing, and F. T. Roberts, the fireman on the Diesel engine.

Shaffer testified that on the morning of the accident he drove a truck from his home in Richmond to his father's house which is located on the northern side of the railroad tracks, in the vicinity of the crossing, to get a load of wood. He approached the crossing by driving westwardly along Highway No. 637 which, as has been said, runs parallel to and south of the railroad tracks. When he reached the intersection of this road and Highway No. 652 he turned right on the latter, intending to go across the crossing. He saw the Hanes car 'sitting on the track,' so he stopped his truck about 60 or 75 feet from the track, turned off the motor, 'got out of the truck,' and went toward the car, as he said, 'to see what I could do, to see if I could help. ' As he approached the car he noticed that it was occupied by a woman. When he was 'about 15 or 16 feet' away from the car he noticed for the first time that a train was approaching 'a right good ways down the track,' possibly 1,000 feet west of the crossing. He was asked, 'Can you tell this jury whether or not a whistle or any signal was sounded? ' His reply was, 'I did not hear any.' He estimated the speed of the oncoming train at 'anywhere from 65 to 70 miles an hour. ' He made no attempt to signal the operator of the engine or warn the occupant of the car of the approaching train. As he said, 'I went up there to help but didn't have time to do anything * * * but run back to the truck. ' After he had gotten 'back to the truck' he saw the engine strike the car.

Although Shaffer said that he remained in the vicinity from five to ten minutes after the collision, or 'maybe a little longer,' he did not go down to the front of the train which had been brought to a stop east of the crossing, or make any inquiry as to who the occupant of the car was or what had happened to her. He proceeded across the railroad tracks and to his destination, his father's house.

On cross-examination Shaffer testified that in the truck with him were his five-year-old son and a friend, Raymond Milstead. At the time of the collision, he said, Milstead 'was sleeping and drinking' and did not see the collision. Milstead, whose presence in the truck was known to counsel for the administrator but unknown to counsel for the Railway Company, was not called as a witness.

Roberts, the fireman on the locomotive, called as an adverse witness for the administrator, testified that he was seated in his customary position on the left side of the cab; that as the engine approached the crossing, and the crossing whistle was being sounded, he 'clearly' saw the decedent's automobile approaching the crossing when it was 'somewhere back of the frame house;' that the car 'was moving up the road and it wasn't racing or anything like that;' that he called to the engineer, who was seated on the right-hand side of the cab, that the crossing was 'clear;' that the car passed behind the frame dwelling and when he next saw it it had cleared that obstruction and was approaching the crossing at a speed of 'not more than four or five miles an hour;' that it 'kept coming and came a little bit closer to the crossing all the time, but I was looking for her to stop at any moment, running so slow;' that when the car 'nosed' up on the track, 'I hollered to the engineer, 'We are going to hit her,'' and that he (Roberts) then observed that the occupant of the car was a woman and 'was looking the other way,' that is, in the oppositite direction from which the train was approaching her. Before the brakes on the locomotive could be applied it struck the car. Roberts estimated the speed of the train at the time of the collision to be 55 miles an hour.

The engineer, who was seated at the right front of the cab, did not see the car before the collision.

Other witnesses who did not actually see the collision testified that they observed the automobile approaching the crossing at a slow speed as the train approached.

Minnie Perkins, a witness for the administrator, testified that on the morning of the collision she was at the house of her brother, Arva Bell, which was about two miles from...