Franklin, Etc., Ry. Co. v. Shoemaker

• Decision Date: 18 June 1931
• Court: Virginia Supreme Court
• Parties: FRANKLIN AND PITTSYLVANIA RAILWAY COMPANY v. KELLEY L. SHOEMAKER, COMMITTEE, ETC.

Page 619

156 Va. 619

FRANKLIN AND PITTSYLVANIA RAILWAY COMPANY v. KELLEY L. SHOEMAKER, COMMITTEE, ETC.

Supreme Court of Virginia, Wythebille.

June 18, 1931.

Present, Prentis, C.J., and Campbell, Holt, Epes and Browning, JJ.

1. STATUTES — Construction — Words given their Ordinary Meaning. — In the construction of statutes, words should be given their natural and ordinary meaning, unless from the statute itself it plainly appears that the legislature intended otherwise.

2. STATUTES — Construction — Statute Plain upon Its Face. — A statute which is plain upon its face should be taken at its face value.

3. STATUTES — Construction — Attending Circumstances. — There is always a tendency to construe statutes in the light in which they appear when the construction is given. It is easy to be wise after we see the results of experience. But in endeavoring to ascertain what the legislature intended, we must, as far as possible, place ourselves in the light that the legislature enjoyed, look at things as they appeared to it, and discover its purpose from the language used in connection with the attending circumstances.

4. STATUTES — Construction — Extension of Statute to Things not Known when Enacted. — If the language used is broad enough to include things not yet known, but which may afterwards come into being, then they too are included, but the terms used must be comprehensive enough to include them.

5. STATUTES — Construction — Extension of Statute to Things not Known when Enacted — Crossing Signals — Sections 3958, 3959 Code of 1919. — When crossing signals were first required by statute, Session Acts 1893-94, p. 827, c. 737, gasoline motor cars were unknown and it is perfectly plain that they do not come within its letter. If they come within it at all, it must be through intendment and construction.

6. CROSSINGS — Signals — Sections 3958 and 3959 Code of 1919 — Words and Phrases — Locomotive. — When crossing signals were first required by statute (Acts of 1893-4, p. 827) as written, and when written, no one could have been in doubt as to its meaning. A locomotive engine then and now connotes a particular machine. It is not a gasoline-driven car, a tractor, an electric motor, or a trolley car, and, if it were to be conceded that in defining a locomotive there was possibility of confusion, that possibility is removed by the statute itself, which declares the locomotive used is to be used on a railway line operated by steam, and must itself have a steam whistle.

7. CROSSINGS — Signals — Section 3958 and 3959 Code of 1919 — Gasoline-Driven Motor Car — Case at Bar. — The instant case was an action for injuries received by the driver of two mules, when he was struck at a crossing by a gasoline motor car operated by the railroad. Plaintiff claimed that the case was governed by the crossing statutes (sections 3958 and 3959 Code of 1919) and this contention was upheld by the lower court; but the Supreme Court of Appeals held that these statutes only applied when the locomotive is used on a railway line operated by steam and the locomotive has a steam whistle.

8. STATUTES — Construction — Extension of Statute to things not Known at Time of Enactment — Known Things. — Language is sometimes construed as broad enough to cover devices not yet in being, but it is never broad enough to include something in common use wholly different from that described.

9. CROSSINGS — Signals — Common Law — Case at Bar. — The fact that the crossing statute (Code of 1919, sections 3958 and 3959) was inapplicable to the instant case did not relieve the railroad from the commonlaw duty of giving timely and adequate notice when its trains approach a public crossing.

10. CROSSINGS — Signals — Sufficiency of Warning — Question for Jury. — The sufficiency of the notice required at common law when a train approaches a public crossing is for the jury.

11. CROSSINGS — Right of Way — Driver of Vehicle or Driver of Train. — A gasoline motor car operated on a railroad track has the right of way at a crossing over a vehicle on the highway.

12. CROSSINGS — Signals — Failure to Give Signals — Wagon making so much Noise that Plaintiff could not have Heard Signals if Given — Causal Connection — Case at Bar. — The instant case was an action for injuries sustained in a crossing accident. Plaintiff was driving a wagon drawn by two mules when he approached the crossing. If the wagon was in fact making so much noise that the plaintiff could not have heard the signals had they been given, then the failure to give them could not have been hurtful. There would have been no causal connection between such failure and the accident.

13. CROSSINGS — Failure to give Signals — Ceasing to Sound Warning when it Appeared to Motorman that Plaintiff had Heard Warning — Case at Bar. — The instant case arose out of an accident at a crossing. If the jury believed from the evidence that the motorman did blow his whistle for the crossing, and was blowing same when the plaintiff came in his sight and that the plaintiff turned his head towards the approaching motor car, and saw the car approaching, and then began to act as if he were attempting to hurry his mules on across the track, and that the motorman, after the plaintiff saw the approaching car, ceased to continue to blow his whistle until the crossing was reached, but used his hands to apply at once the brakes upon the car, to do what was in his power to prevent injury to the plaintiff, then the failure to give further warning was not negligence either at common law or under the statute.

14. CROSSINGS — Wagon of Plaintiff Struck by Gasoline Motor Car Operated by Railroad — Common Law Applies. — The instant case was an action against a railroad for injuries sustained when plaintiff's wagon was struck at a crossing by a gasoline motor car operated by the railroad. The common-law doctrine of negligence applied and a requested instruction based on that doctrine should have been given.

15. CROSSINGS — Causal Connection — Burden of Proof. — In an action arising out of a crossing accident the burden was on the plaintiff to show some causal connection between the defendant's negligence, should the jury believe from the evidence that the defendant was negligent, and the accident.

16. CROSSINGS — Presumption of Negligence. — In an action for injuries arising out of an accident at a crossing, the court should have instructed the jury, as it was asked to do, that no presumptions of negligence followed merely from the accident.

17. CROSSINGS — Signals — Witness — Impeachment — Case at Bar. — When a witness, a passenger on a gasoline motor car operated by a railroad, had previously testified that she had not heard the crossing signals, it was proper for the defendant, in an endeavor to break the force of her testimony, to show that she had before then said that the motorman did everything possible to avoid the accident.

18. CROSSINGS — Evidence — Maps — Case at Bar. — In the instant case an action for injuries sustained in a crossing accident, defendant offered in the evidence a surveyor's map purporting to show the situation at the place of the accident. A map which is a map and nothing more is of course competent. This undertook to show matters which were in dispute — where the motorman was when he first applied his brakes, where he was when plaintiff first went upon the track, etc., all of which was beyond the proper functions of a map, and incompetent. It should have been rejected.

Error to a judgment of the Circuit Court of Franklin county, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

C. C. Lee, for the plaintiff in error.

A. B. Hunt, P. H. Dillard, Jr., and R. L. Carney, for the defendant in error.

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

Designating the parties as they were designated in the trial court, the defendant, a Virginia corporation, was chartered on the 13th day of July, 1922, and by its charter was authorized to operate its lines "with steam or any other kind of motive power." The road itself, now nineteen miles long, lies wholly in Franklin county. Its motive power consists of a light freight engine and a gasoline power car. This locomotive, carrying a light freight train, is scheduled to make one trip a week and runs as an extra whenever there is any demand for it. The power car makes two trips a day and is nothing more than a motor bus fitted for railway traffic. It is built on a Kelly Springfield chassis, has a seventy-five-horsepower motor, and is equipped with air and hand brakes. Its body is about eight feet wide and about thirty-five feet long. In the rear is a space for passengers; forward, baggage, mail and express are carried.

On the 19th of December, 1928, W. I. Shoemaker, driving two mules to a wagon, undertook to cross the defendant's track at a public crossing. He was struck by this motor car and suffered distressing and permanent injuries. In this action brought by his committee he recovered a verdict for $18,000.00, which was confirmed by the trial court. It was of opinion that what are known as the crossing statutes in Virginia, Code sections 3958 and 3959, applied, and so instructed the jury. The correctness of that ruling is challenged by proper exceptions and on it this case in a large measure turns.

Section 3958 provides: "Every railroad company, whose line is operated by steam, shall provide each locomotive engine passing upon its road with a bell of ordinary size, and steam whistle, and such whistle shall be sharply sounded outside of incorporated cities and towns at least twice at a distance of not less than 300 yards, nor more than 600 yards, from the place where the railroad crosses upon the same level any highway or crossing, and such bell shall be rung or whistle sounded continuously or alternately until the engine has reached such highway crossing, and shall give such signals in cities and...