Etheridge v. Norfolk So. R. Co.

• Decision Date: 01 October 1925
• Citation: 143 Va. 789
• Court: Virginia Supreme Court
• Parties: W. T. ETHERIDGE v. NORFOLK SOUTHERN RAILROAD CO., ET AL.

Page 789

143 Va. 789

W. T. ETHERIDGE v. NORFOLK SOUTHERN RAILROAD CO., ET AL.

Supreme Court of Virginia, Richmond.

October 1, 1925.

1. CROSSINGS — Signals — Automatic Signals — Contributory Negligence — Case at Bar. — A plaintiff, a driver of an automobile, in an action for injuries sustained in a collision at a railroad crossing, cannot recover because the automatic signals were out of order, if he himself was guilty of contributory negligence.

2. CROSSINGS — Contributory Negligence — Automatic Signals. — In the instant case, plaintiff was injured when he ran his automobile into the engine of defendant at a railroad crossing. Plaintiff, a man in full possession of his faculties, in broad daylight, in a level country, traveling at a moderate rate of speed, where the view was unobstructed, ran into the side of an oncoming train which he did not see until it was too late to save himself, plaintiff testified that he neither looked or listened for the train but concentrated his attention on the automatic signal, which was out of order.

Held: That plaintiff was guilty of contributory negligence.

3. CROSSINGS — Contributory Negligence — Open Gates — Silent Gong — Case at Bar. — The erection of gates, gongs, or other devices at highway or street crossings to warn travelers of approaching trains does not excuse a traveler at such crossings from exercising ordinary care and caution. But generally the same degree of care and caution is not required of the traveler as if there was no such invitation as an open gate or a silent going gives to the traveler to cross.

4. CROSSINGS — Silent Gong — Open Gates — Questions of Law and Fact. — In cases where there is failure to close the gates or an automatic gong fails to sound and a collision follows, the question of negligence and contributory negligence is usually for the jury.

5. QUESTIONS OF LAW AND FACT — Negligence — Contributory Negligence. — Questions of care and negligence after the facts are proved must be decided by the court. A judge is not bound to submit to the jury the question of negligence, although there may be a conflict of evidence in relation to some of the facts relied on as proving it, if rejecting the conflicting evidence, the negligence charged is conclusively proved by the defendant's own witness. Thus the question whether contributory negligence has been proven in a given case is usually one for the jury. Nevertheless such question, in a particular case, may become one of law and thus come within the province of the court.

6. NEGLIGENCE — Contributory Negligence — Questions of Law and Fact. — Where the facts are such that reasonable men of fair intelligence may draw different conclusions, the question of contributory negligence must be submitted to the jury, for the finding is then of fact. But if it is clear that only one reasonable inference can be drawn from the facts, and the course which prudence dictates be definitely discerned, the finding thereon is of law, not of fact, and it devolves upon the court to settle the matter.

7. CROSSINGS — Statutory Signals — Whether Properly Given — Conclusiveness of Verdict of Jury. — In an action for injuries sustained in an accident at a crossing, the question of whether the railroad gave the statutory signal of approach is settled by the verdict of the jury in favor of the plaintiff the jury was properly instructed as to the law applicable.

8. CROSSING — Instructions — Statutory Signals — Proximate Cause. — In an action for injuries arising out of an accident at a railroad crossing, an instruction asked for which told the jury to return a verdict for the plaintiff if they believed that the railroad company had, "in any particular," failed to give the statutory signals of approach called for by section 3959 of the Code of 1919, was refused by the trial court, which modified it by the addition of the words "provided they further believe from the evidence that the failure to blow the whistle or ring the bell was the proximate cause of the accident."

Held: That the modification was proper.

9. NEGLIGENCE — Proximate Cause — Negligence Must Contribute to the Injury. — No judgment can be based upon a defendant's negligence unless that negligence in some degree contributed to the injury. There must be some casual connection between them.

10. NEGLIGENCE — Proximate Cause — Definition of Proximate Cause — More than One Proximate Cause. — Proximate cause is an unsatisfactory phrase, but by its use in unnumbered cases it has grown to be a part of the livery of the law of negligence and it is now too late to discard it. A cause without which something would not have happened is a proximate cause, but it is not necessary that such cause be the major cause. It is also true that there may be more than one proximate cause, though they contribute to the result in an unequal degree.

11. CROSSINGS — Statutory Signals — Section 3959 of the Code of 1919 — Comparative Negligence. — Section 3959 of the Code of 1919, in regard to the effect of failure to give statutory signals does not change the law of negligence and it is still true, that the burden of proof is upon the plaintiff to prove that the operators of the train failed to give the statutory signals and that such failure caused the injury. Section 3959 of the Code of 1919, did nothing more than to provide that in such cases the doctrine of comparative negligence should be substituted for that of contributory negligence. It is still necessary for the plaintiff to prove that the defendant's negligence caused his injury; that but for it the injury would not have occurred, but having shown this, he is not precluded upon recovery by the fact that he himself was negligent.

12. CROSSINGS — Proximate Cause — Comparative Negligence — Section 3959 of the Code of 1919. — A cause without which an accident would not have happened is a proximate cause. When that has been established and when it has appeared that the defendant was responsible therefor the plaintiff is entitled to judgment and this cannot be defeated by showing that he, also, was negligent, however gross that negligence may have been. In such a case the adjustment of rights arising therefrom is, by the very terms of the statute (section 3959 of the Code of 1919 on the effect of failure to give statutory signals), left to the jury.

13. CROSSINGS — Instructions — Instruction as to Statutory Signals and Proximate Cause. — While in an action for injuries sustained in an accident at a crossing, it might have been well to set out in one instruction the requirements of the crossing statute (section 3959 of the Code of 1919) and in another that there could be no recovery until it was made to appear that there was some casual connection between the omission of the railroad to comply therewith and the injury suffered, there was no error in their combination in one instruction, in the instant case, as the jury could neither have been misled or confused.

Error to a judgment of the Circuit Court of the city of Norfolk, in an action of trespass on the case. Judgment for defendants. Plaintiff assigns error.

The opinion states the case.

Cole & Cole, for the plaintiff in error.

Jas. G. Martin & Bro. and Williams, Loyall & Tunstall, for the defendants in error.

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

The accident out of which this action grew occurred at a grade crossing near the city of Norfolk where the Indian River turnpike intersects the line of the Virginian Railway Company. Over this line a passenger train was being operated by the Norfolk Southern Railroad Company and into the locomotive tender of that train plaintiff ran his automobile. In due course matters in issue were submitted to a jury. There was a verdict for the defendants which plaintiff asked to be set aside as contrary to the law and the evidence. His motion was overruled and final judgment entered, to which exception was duly taken. This exception and those taken when the jury was being instructed are all of the exceptions before us.

In the petition for writ of error there are four assignments of error.

Errors Assigned.

"First: The court erred in refusing to give instruction `A,' `B,' `C' and `D' as asked; thereby taking entirely away from the jury the consideration of the plaintiff's theory of the case.

"Second: The court erred in modifying instruction `A' as asked by the plaintiff, and in giving said instruction modified as instruction No. 2.

"Third: The court erred in emphasizing and impressing upon the jury the theory of the defendants' case, by repeating and multiplying instructions thereon.

"Fourth: The court erred in giving instructions for the defendants which were misleading, confusing and erroneous."

An exanination of these assignments and instructions shows that plaintiff rests his case upon two propositions. He says that he is entitled to recover: (1st) Because the signals of approach provided for by section 3959 of the Code were not given by the Norfolk Southern Railroad Company, and (2nd) because the automatic signal and bell installed at this crossing by the Virginian Railway Company were not functioning and that this was due to the negligence of that defendant.

We will, for convenience, take up first this second proposition, as it is patent that he cannot recover because the automatic signals were out of order if he himself was guilty of contributory negligence. In such a case no verdict would have been possible save one for the defendant, and if returned would have been set aside as contrary to the evidence or without evidence to support it, and so it follows that any instructions dealing with rights and liabilities arising out of defects in the automatic signals could have only an academic interest and need not be discussed nor is it necessary to copy them into this opinion.

For the purposes of this case we will assume that these signals were out of order and had been for some time, and that when in order the...