Dir. Gen. Of R.R.S v. Hubbard's Adm'r

• Citation: 111 S.E. 446
• Parties: DIRECTOR GENERAL OF RAILROADS et al. v. HUBBARD'S ADM'R.
• Decision Date: 16 March 1922
• Court: Supreme Court of Virginia

111 S.E. 446

DIRECTOR GENERAL OF RAILROADS et al.

v.HUBBARD'S ADM'R.

Supreme Court of Appeals of Virginia.

March 16, 1922.

Rehearing Denied April 3, 1922.

Sims, J., dissenting.

Error to Circuit Court, Alleghany County.

Action by the administrator of Lewis Hubbard, deceased, against the Director General of Railroads and the Chesapeake & Ohio Railway Company. Judgment for plaintiff against both defendants, and defendants bring error. Reversed, and action dismissed.

J. M. Perry, of Staunton, for plaintiffs in error.

Geo. A. Revercomb and R. C. Stokes, both of Covington, for defendant in error.

BURKS, J. This is an action against the Chesapeake & Ohio Railway Company and the Director General of Railroads to recover damages for the death of the plaintiff's intestate, who was killed by a passenger train on the Chesapeake & Ohio Railway on March 31, 1919, while that company was under the control of the federal government and operated by the Director General of Railroads. After the evidence was all in, the defendants demurred thereto, and the trial court overruled the demurrer and entered judgment against both defendants for the sum of $8.-000, the amount of the damages assessed by the jury in their verdict. To that judgment a writ of error was awarded by one of the judges of this court.

The defendant was operating a double-track railroad from Covington to Jerry's run, a distance of about 16 miles. Between these two points there are two other block signals, one at R. S. cabin and another at Moss run. Between Moss run and Jerry's run there is no telegraph station, and no means of communicating with trains. Trains may be diverted from one track to the other at B. S. cabin and Moss run by "crossovers" and by switches, at Jerry's run. Just west of Jerry's run is Lewis tunnel, about seven-eighths of a mile long, and through which the track is single. About half a mile east of Jerry's run there is a disused signal station, known as "Old Jerry's run, " on the north side of the railroad, which is occupied by a Mrs. Fridley as a dwelling. From Moss run to Jerry's run is upgrade. Just east of Mrs. Frldiey's house and Old Jerry's run tower the railroad passes through a cut, the bank of which is 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 it reaches 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 35 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 the 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.

Lewis Hubbard, the plaintiff's intestate, was a signal maintainer of the Chesapeake & Ohio Railway Company, and at the time of his death had 18 months' experience as such. For the purpose of discharging his duties, he was provided with a gasoline motorcar. On March 31, 1919, in discharge of his duties, he set out with a companion, Saville, on the motorcar, to make the trip from Covington to Jerry's run. He arrived at Moss run cabin at 7:50 a. m., and went into the telegraph office and inquired about the running of trains. He was told that a westbound freight was approaching and where it was, and that the west-bound express train No. 1 was following the freight. He inquired "if there was any show of east-bound No. 1 going by the east-bound track, " and the operator told him that he did not know; that he had had no orders to that effect. It was seven miles from there to Jerry's run. With this information Hubbard left Moss run at 8:12 a. m. and put his motorcar on the west-bound track, and when last seen he and his companion were making good time going west. The freight train (No. 742) passed Moss run at 8:22 a. m., and proceeded west on the west-bound track without stopping. At that time no orders had come to the operator with reference to diverting the express train No. 1 to the east-bound track, but as the freight train passed the operator at Moss run was instructed to "watch No. 1, " which he explained was for the purpose of putting the operator on guard for orders for No. 1. At 8:30 a. m., 20 minutes after Hubbard had left on the west-bound track, the operator at Moss run received orders to divert No. 1 to the east-bound track, and at 8:43, 30 minutes after Hubbard had left, No. 1 arrived at Moss run, and was diverted from the west-bound to the east-bound track in accordance with these orders. After leaving Moss run, Hubbard and his companion had trouble with the motor on their car, and were pushing it along the west-bound track when they passed Mrs. Fridley's house at Old Jerry's run cabin. After they had passed her house about 200 feet, Mrs. Fridley heard the whistle of No. 1 some distance east of her house, but the windows and doors were shut and it was a quite blustery morning, and she could give no idea as to how far the engine was at that time east of her house. However that may be, looking through the side window of her house, which was closed, to the west-bound track, when she heard the whistle blow, she saw Hubbard and his companion set the motorcar over from the westbound 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. While they were thus pushing their car along the east-bound track, Mrs. Fridley was still standing at her window and saw No. 1 when it passed on the east-bound track, and she continued to watch the train and Hubbard and his companion until the engine struck them, killing Hubbard and severely injuring his companion. The point at which Hubbard was struck was 311 feet west of the point of set-over. Mrs. Fridley was examined as a witness for the plaintiff, and testified that she was looking out of the window facing the track when No. 1 passed, and she could see through the windows of the engine, and that there was no one on the engineer's seat or on the fireman's seat when the train passed her house, and that there was a curtain hanging down at the back of the cab between the engine and tender, and that she could see through the gangway, but saw no one there. She also testified that she could see no glow from the fire in the engine when it passed her house, and that if the fire box had been opened there would have been such glow and she would have seen it. Leffel, a witness examined for the plaintiff, testified that from the point of set-over down to what he calls the whistle post looking east is a distance of at least a quarter of a mile, although he did not measure it, and that the track is nearly straight for that distance. He also testified, however, that there is a curve in the cut just east of Mrs. Fridley's house, and from there to the point of the accident, a distance of 754 feet 6 inches, the view of the engineer would be cut off. There were offered in evidence two photographs, one marked Exhibit A, and taken from the point of the accident looking east, and showing the track and the Fridley house. The other, marked Exhibit B, taken from a point in front of Mrs. Fridley's house (Old Jerry's run cabin), looking west, to the point of the accident, and a diagram showing the cut and bluff east of Mrs. Fridley's house, and the bluff west of her house and the immediate surroundings.

The location of what is spoken of by Leffelin his testimony as the whistle post is not definitely fixed by the testimony, nor can it be told from the testimony, where the engine was at the time of the whistle spoken of by Mrs. Fridley. The engineer testified that it was customary to blow for Old Jerry's run cabin, and at some times it was done and at others not after the removal of that station, and that he had no recollection as to whether the whistle was blown for Old Jerry's run on the morning of the accident or not. Unless the engineer or fireman could have seen the point of set-over, or the deceased after the set-over, it is unimportant as to the point at which the whistle was blown, except to show the time and place of the set-over, and the distance traveled after the set-over and before the accident. The engineer estimated that he was traveling at the rate of from 15 to 17 miles an hour, and as Hubbard and his companion traveled 311 feet after the set-over before the accident, it would seem that they were walking at the rate of about 3 miles an hour. If the engine was traveling at the rate of 15 miles an hour and Hubbard was walking at the rate of 3 miles an hour after the set-over, it would place the engine about a quarter of a mile off when the whistle was blown.

A motion was made in the trial court to dismiss the action against the Chesapeake & Ohio Railway Company on the ground that, if there was any liability, the Director General was solely liable, but the motion was overruled and exception taken. Thi3 is assigned as error. This ruling of the trial court was erroneous, and its action in this respect will be reversed, and judgment will be entered in this court dismissing the action as to the Chesapeake & Ohio Railway Company with costs. Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. —, N. & W. Ry. Co. v....