Dir. Gen. Of R.R.S v. Pence's Adm'x

• Decision Date: 15 March 1923
• Citation: 116 S.E. 351
• Parties: DIRECTOR GENERAL OF RAILROADS . v. PENCE'S ADM'X.
• Court: Virginia Supreme Court

116 S.E. 351

DIRECTOR GENERAL OF RAILROADS .

v.PENCE'S ADM'X.

Supreme Court of Appeals of Virginia.

March 15, 1923.

Error to Circuit Court, Brunswick County.

Action by the Administrator of Robert Pence against Director General of Railroads. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

Hall, Wingfield & Apperson, of Roanoke, Nat. Turnbull, of Lawrenceville, and W. C. Plunkett, of Roanoke, for plaintiff in error.

Buford & Peterson, of Lawrenceville, and C. T. Lassiter, of Petersburg, for defendant in error.

KELLY, P. Robert Pence while riding in an automobile was struck and killed by a Virginian Railroad train at a crossing, and his administratrix brought this action for damages against the Director General, who at the time of the accident was operating the railroad. There was a verdict and judgment below in favor of the plaintiff, and the defendant assigns error.

The facts of the case, so far as material for the purposes of this decision, may be fairly stated thus:

Pence was a traveling salesman employed by the International Harvester Company. At the time of the accident he was riding in a Ford runabout driven by Shirley Stillwell, a traveling salesman employed by W. H. Harrison Company. The Harvester Company was the manufacturer of a certain type of plows, which It wished to sell by wholesale to the Harrison Company, a local dealer. Thevolume of the sales by the Harvester Company to the Harrison Company depended upon the success of the latter in selling the plows to the local trade. For the mutual benefit of both companies an arrangement was entered into between them, whereby the Harvester Company agreed to furnish a salesman to visit the customers of the Harrison Company and sell plows to them, and the Harrison Company in turn agreed to furnish a car and driver to take the salesman around over the country and introduce him to the trade. Pursuant to this arrangement the Harvester Company sent Robert Pence, and the Harrison Company furnished the car, and sent one of its traveling salesmen, Shirley Stillwell, who acted as driver of the car, and also introduced Pence to the parties who were expected to buy the plows. Stillwell was acquainted with the country and with the contemplated customers, and Pence was a stranger to both. It was a joint enterprise in the sense that both companies would be benefited by the sales, and also in the sense that Pence and Stillwell were working at It together, but neither Pence nor Stillwell originated the scheme, and they were paid by and acting under the orders of their respective employers. Their connection with the undertaking and their relationship with each other are very well shown by the following extracts from the testimony of Mr. Geo. W. Harrison, the manager of the Harrison Company:

"The International Harvester Company was to furnish us a salesman which at this time happened to be Mr. Pence and we, in turn, were to furnish a car and driver. Mr. Stillwell was carrying Mr. Pence around, introducing him to the trade, not acting in the capacity of a salesman at all. Mr. Pence was doing the selling. * » * Mr. Pence's duties were simply one of a salesman. On this particular trip he was to sell plows only. This territory was all new to Mr. Pence, and Mr. Stillwell went along more or less in the capacity of a driver, introducing: him to the trade, and Mr. Pence was strictly the salesman. It was a new line of goods with us. and naturally Mr. Stillwell didn't know anything about it. The expenses of Mr. Pence were paid by the International Harvester Company, as well as his salary. We paid Mr. Stillwell and furnished the car.".

It further appeared in the statement of the witness W. J. Floyd, who testified for the defendant, that the two men came to his store together on or about the day of the accident, and were both selling the plows, but he summed up the situation in his final statement as follows:

"Mr. Pence, I believe, was the salesman, and seemed to be, and Mr. Stillwell was encouraging the sale..He said that they would be shipped through his house, W. H. Harrison Company, if I bought."

It further seems clear from the evidence that Pence had no authority or control over Stillwell, either as to the places to be visited or as to the operation of the car, and that Pence's salary was a fixed sum for the year, and not dependent upon the result of the particular business in which he was engaged at the time of his death.

The accident occurred on December 12, 1919, at a point in the unincorporated village of Alberta, where the main line of the Virginian Railroad crosses a public road Which is known In the village as Main street. The population in the village numbers about 150, and the crossing is very generally used by the people there, as well as by others having occasion to cross the tracks at that point. The road crosses the tracks approximately at right angles. The car in which Pence, and Stillwell were riding was coming south. At the crossing, which is about 600 yards west of the station at Alberta, the company maintains three tracks nearly parallel with each other and running east and west. The first, counting from the north, is a spur track, known as the Wheeler track, next is the passing track, and next the main line. Just east of the crossing, on the north side, there is a cut, the land on that side of the road rising gradually from the north until it reaches a height of several feet at the crossing. On the day of the accident there were several piles of lumber along the top of this cut, and two box cars were standing on the Wheeler track west of the crossing and within 3 or 4 feet of the county road. These obstructions—the cut. the lumber, and the box cars—obscured the view of the two other tracks to such an extent that Pence and Stillwell could not have seen a train coming from the west until they had passed the end of the box cars. In making this statement of the situation the figures we use are practically correct, but we have not undertaken to attain mathematical precision in this respect. The distance between the south rail of the Wheeler track and the north rail of the passing track was 25 feet, and the distance from the south rail of the Wheeler track to the north rail of the main track was 40 feet. A Ford runabout is 11 feet 3 inches long, and ' the back of the driver's seat is 7 feet from the extreme front end of the car. The tracks are perfectly straight from the crossing west for a distance of 1, 728 feet. When the occupants of the car reached a point, which for convenience we shall call A, where their position on the seat was about 3 feet south of the south rail of the Wheeler track, they had a clear view of the main line to the west for a distance of 200 feet. With the occupants of the car in that position the rear wheels of the car were between the rails of the Wheeler track and the front wheels were 15 feet from the north rail of the passing track, and 28 feet from the north rail of the maid track. When the car had moved forward 13 feet from the point A to a point which weshall call B, Its occupants had a clear view of the track to the west (except as obstructed by the train) for a distance of 840 feet. In that position the front wheels of the car were about 2 feet from the north rail of the passing track, and about 15 feet from the north rail of the main track. At a point which we shall call C, in the center of the passing track, the occupants of the car had a clear view of the main track (except as obstructed by the train) for 1, 726 feet to the west. Their front wheels were then about 4 feet from the main track. As the car moved from A to C, the view gradually extended; and it is perfectly manifest that there was a point between the Wheeler track and the passing track where the car could have been stopped free from danger from either track, and where the occupants would have had a clear view of the main track west for a distance of more than 840 feet.

As the automobile approached the Wheeler track from the north, Stillwell drove very slowly, and finally stopped just before he reached that track. He looked and listened for a train, but saw and heard none, and then proceeded across the track in low gear at a speed of about 5 miles an hour. He described his movements at this point as follows:

"Q. How were you driving the car?

"A. As I came up I came along pretty fast until I got near the track, and then I slowed up slow, and I got right to it and finally came to a stop.

"Q. You are talking about the side track?

"A. Yes. Then I looked to the right, and couldn't see anything, and looked to the left. "Q. Did you hear anything?

"A. I didn't hear anything, and I stopped and listened. I couldn't hear anything either way, and couldn't see anything, and I came to the conclusion that nothing was coming, and started up again in low gear, and when I was past the box car far enough to see up the track the train hit me. I didn't see the train. The train hit me. I only remember blot of some kind, and that is all. I remember seeing the vision of something, and that is all.

"Q. According to your recollection what was the distance between the side track and the first of the tracks that appeared to you to be main tracks?

"A. I thought there wasn't 11 or 12 feet until you were actually on the track, and I thought both of those tracks were main tracks. Both of them looked like they had been used as much

as the other.

* * * * * * *

"Q. After you started up again, did you hear any bell or whistle?

"A. I didn't hear no bell, and didn't hear no whistle, and I still continued to listen to try to hear if anything was coming."

The steering wheel, and hence the driver's position, was on the left, and Pence was sitting on the right-hand side. The curtains on the car extended from the back of the top toward the front, and came down

from the top flush with the front of the seat on which these parties were riding. It affirmatively appears...