Davis v. Saville
| Decision Date | 15 November 1923 |
| Citation | 120 S.E. 160 |
| Parties | DAVIS, Director General of Railroads. v. SAVILLE. |
| Court | Virginia Supreme Court |
Appeal from Circuit Court, Alleghany County.
Action by one Saville against James C. Davis, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed, and final judgment entered for defendant.
J. M. Perry, of Staunton, for plaintiff in error.
Geo. A. Revercomb and R. C. Stokes, both of Covington, for defendant in error.
This is the companion case of Davis, Director General, v. Hubbard's Adm'r, 132 Va. 193, 111 S. E. 446. Hubbard was killed and Saville injured in the same accident. They were assistant signal maintainors of eight months' experience on the Chesapeake & Ohio Railway, and traveled from place to place on the railroad in the discharge of their duties in a gasoline motor car. The scene of the accident was on a piece of double track, and, while trains going west usually traveled on the west-bound track and those going east on the east-bound track, it was a very common practice, with which Hubbard and Saville were familiar, to reverse the traffic at different points. The accident occurred at a point a short distance west of old Jerry's Run tower and the injury was inflicted by an express train carrying eight coaches and running upgrade at from 15 to 18 miles an hour. The railroad is here climbing the Alleghany Mountains. It runs well up on the side of the mountain, frequently cutting through rocky bluffs and constantly curving in different directions in order to obtain the desired elevation. About 1, 800 feet east of the place of the accident there is a milepost, No. 303, which was referred to in the Hubbard Case as a whistle post. But there is no whistle post within two miles of this point. The road is through the mountains. There is neither station nor road crossing within that distance. The old Jerry's Run tower had been removed about three-fourths of a mile further west, but before its removal it was customary to sound the whistle about mile-post 303, or a little east thereof, and after its removal this custom was frequently observed, although there was no necessity for it.
At the time of the accident the old Jerry's Run station was occupied by a Mrs. Fridley as a dwelling. Just east of Mrs. Fridley's house and old Jerry's Run tower, the railroad passes through a cut, the bank of which is from 16 to 18 feet high on the south side— the fireman's side going west. The western portal of this cut is 30 feet east of old Jerry's. Run tower. Trains going west come around a right-hand curve along the base of the mountain until they reach the western portal of a cut nearly a quarter of a mile east of Mrs. Fridley's house; from thence the track is straight for 830 feet to a point in the cut just east of Mrs. Fridley's house. It then turns to the left, and continues to the left on a three degree curve to and beyond the point of the accident. Mrs. Fridley's house is 38 feet from the east-bound track, and has one window fronting the railroad and another looking west along the railroad track. There is a high bluff on the right or north side of the railroad just west of Mrs. Fridley's house. From a point on the railroad just opposite Mrs. Fridley's front window to the point of set-over, hereinafter mentioned, is 228 feet 5 inches, and from the latter point to the point of accident is 311 feet, thus making 539 feet 5 inches from Mrs. Fridley's window to the point of accident. From the point of the accident, looking east, to the curve in the cut just east of Mrs. Fridley's, is 754 feet 6 inches.
Saville and Hubbard were traveling west on the west-bound track. Train No. 1, which struck them, had been diverted, and was traveling west on the east-bound train. Before reaching Mrs. Fridley's house, Saville and Hubbard had trouble with their motor, and had gotten off their car, and were pushing it along the west-bound track when theypassed Mrs. Fridley's house. After they had passed her house something over 200 feet, Mrs. Fridley heard the whistle of No. 1 somewhere east of her house. When she heard the whistle blow, she saw Saville and Hubbard set the motor car over from the west-bound track to the east-bound track and proceed to push it along the upgrade on the east-bound track without ever at any time turning their heads to look back. She was still standing at her west window when the train passed on the east-bound track, and continued to watch the train and Saville and his companion until the engine struck them, killing Hubbard and severely injuring Saville. The point of set-over is 22S feet 5 inches west of Mrs. Fridley's south window, and the point of the accident is 311 feet west of the point of set-over.
Leffel, who was examined as a witness for the plaintiff in the Hubbard Case, was not examined in this ease, but, in lieu thereof, the plaintiff introduced an engineer of five years' experience and a map made by him of the scene of the accident, and a witness, a. G. Fauver. He proved by both of these witnesses various points along the approaching track from which a person, with an unobstructed view, could see a person standing on the track at the place of set-over. But this testimony was not deemed of sufficient importance to be even the subject of comment in the brief of the defendant in error. The. map has not proved helpful to the court in ascertaining the facts of the case. It is on a different scale from other maps in the case, and every point of the compass has been reversed. The top of the map is south instead of north, and the right side is west instead of east. The Director General also introduced a cross-section map showing the slopes of the banks on each side of the track in the bluff just east of Mrs. Fridley's house. This map is not made a part of the record, but its correctness is not disputed. It is not claimed that the maps introduced by the Director General are inaccurate in directions, curves, or measurements, but only that the map introduced by the plaintiff shows more clearly the slopes of the cut east of the Fridley house and the width of the cut at the top and bottom. To use the language of the brief for the defendant in error:
"The map offered in the case at bar by the plaintiff is a much more comprehensive map and one that sets forth the conditions at the point of accident, and near there, much more clearly than the map which was offered in the case of Hubbard's Administrator v. Director General of Railroads, and the map offered in the case at bar by the plaintiff shows the point of set-over—that is, the point where the plaintiff set the motor car from the west-bound track to the east-bound track—and also shows that from the curve cast of Mrs. Fridley's house, where the train first comes in sight of the point of set-over, that this curve is in favor of the engineer and gives him an opportunity to see from that curve the point of set-over, and beyond that point, and shows that there is nothing to obstruct the view of the engineer from said curve westward to the point of set-over and beyond that point."
The map filed by the Director General, and made a part of the record, not only shows each of these points, but many others besides. This latter map was not in the Hubbard Case, but was used as illustrative on the reargument of that case. The new map introduced in this ease by the defendant in error is only valuable as furnishing a basis for inference as to what the engineer or fireman might have seen from their positions on the engine, which inferences are contradicted by undisputed positive testimony.
The Hubbard Case had the most careful consideration of every member of the court. After full argument, both orally and on the briefs, differences of opinion developed among the judges, and reargument was had at the instance of the court on certain specified questions. The case was then again carefully considered, with the result shown in the official report. The case was assigned to Judge Saunders, who concurred with the majority, to write the opinion, but he died before the opinion was prepared. Then there was a petition for rehearing, which was denied. The brief for the defendant in error is taken up very largely with practically a reargument of the Hubbard Case. We are of opinion that the defendant in error has not strengthened his case so far as relates to negligence on the part of the engineer, and in this respect we adhere to the position taken in the Hubbard Case.
The engineer's seat overhangs the right rail of the track, and if a straight edge be placed along the base of the straight track, either between the tracks or on the right rail of the east-bound track and extended to the bluff beyond Mrs. Fridley's house, it will be found that it strikes the bluff considerably to the right of the west-bound track; but the defendant in error has insisted that the engineer had a cross-vision which would extend to the point of set-over. This is mere theory. He relies in part upon the testimony of Robinson, fuel supervisor of the railroad, introduced by the plaintiff in error, to support his theory that the cross-vision of the engineer would enable him to see the point of set-over while he was traversing the straight track. He did testify to the fact, which is a matter of common knowledge, that looking ahead on a straight track there would be a cross-over vision. But notwithstanding this fact he testified that he had made a trial trip on an engine of exactly the same type as the engine in controversy, but that at no point along the straight track could the point of set-over be seen by the en-gineer. His testimony on this subject is as follows:
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