Franklin & P. Ry. Co v. Shoemaker's Comm.

Decision Date18 June 1931
Citation159 S.E. 100
CourtVirginia Supreme Court
PartiesFRANKLIN & P. RY. CO. v. SHOEMAKER'S COMMITTEE.

Error to Circuit Court, Franklin County.

Action by Kelloy L. Shoemaker's Committee, etc., against the Franklin & Pittsylvania Railway Company. Judgment for the plaintiff, and the defendant brings error.

Reversed and cause remanded.

Argued before PRENTIS, C. J., and CAMPBELL, HOLT, EPES, and BROWNING, JJ.

C. C. Lee, of Rocky Mount, for plaintiff in error.

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

HOLT, J.

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 19 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 motorbus fitted for railway traffic. It is built on a Kelly Springfield chassis, has a 75 horse power motor, and is equipped with air and hand brakes. Its body is about 8 feet wide and about 35 feet long. In the rear is a space for passengers; forward, baggage, mail, and express are carried.

On the 19th of December, 1928, W. 1. Shoemaker, driving two mules to a wagon, undertook to cross the defendant's track at a public crossing. He was struck by this motorcar and suffered distressing and permanent injuries. In this action brought by his committee he recovered a verdict for $18,000, which was confirmed by the trial court. It was of opinion that what are known as the crossing statutes in Virginia, Code, §§ 3958, 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 three hundred yards nor more than six hundred 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 towns as the legislative authorities thereof may require."

Section 3959 provides that, when there is a failure to give these signals of approach at a grade crossing, a traveler there injured shall not be precluded from a recovery by the mere fact that he was guilty of contributory negligence, but that his failure to exercise proper care must be considered by the jury in mitigation of damages.

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. Harrison v. Wissler, 98 Va. 597, 36 S. E. 9S2;' Commonwealth v. Bailey, 124 Va. 800, 97 S. E. 774.

A statute which is plain upon its face should be taken at its face value.

"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 Congress of 1862 intended, we must, as far as possible, place ourselves in the light that Congress enjoyed, look at things as they appeared to it, and discover its purpose from the language used in connection with the attending circumstances." Piatt v. Union Pacific R. R. Co., 99 U. S. 48, 63, 25 L. Ed. 424; County of Schuyler v. Thomas, 98 U. S. 169, 25 L. Ed. 88.

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.

In McBoyle v. United States, decided by the Supreme Court on March 9, 1931, 51 S. Ct. 340, 341, 75 L. Ed. 816, Mr. Justice Holmes reached the conclusion that an airplane was not a "vehicle" within the meaning of a statute which prohibited the trans^ portation of stolen goods in a vehicle, and said: "When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft simply because it may seem to us that a similar policy applies, or upon the speculation that if the Legislature had thought of it, very likely broader words would have been used." See, also, 25 R. C. L. 778.

When crossing signals were first required by statute, Session Acts 1S93-94, p. 827, c. 737, gasoline motorcars were unknown and it is perfectly plain that they do not come within its letter. If they come at all, it must be through intendment and construction. This court, looking at these statutes from another angle, it is true, said that they should be construed strictly, and that the particular signals required must be given, that others, though as good, will not suffice. Gregory v. Seaboard Ry. Co., 142 Va. 750, 128 S. E. 272. As written, and when written, no one could have been in doubt as to their 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.

Authorities in point are not very numerous, and usually turn upon the language written into the particular statute in judgment. Probably the last reported case on this subject is Libby v. New York, New Haven & Hartford R. Co., 174 N. E. 171, 173. decided by the Supremo Judicial Court of Massachusetts on December 20, 1930. Plaintiff rested his case upon the failure of the railway to give the statutory crossing signals. It was held that they did not have to be given.

In section 138, G. L., c. 160 (Mass.), it is said: "Every railroad corporation shall cause a bell of at least thirty-five pounds in weight, and a steam whistle, to be placed on each locomotive engine passing upon its railroad. * * * " Section 232 is in part as follows: "If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing such as is described in section one hundred and thirty-eight, and it appears that the corporation neglected to give the signals required by said section, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision. * * *"

The court in its opinion said: "Railroad motor cars operated by gasoline such as the one in question could not be included in G. L. c. 160, § 232, without rendering the words steam whistle superfluous. It appears that the motor car in the case at bar was equipped with an air whistle. If the statute is to be literally enforced against such motor cars it would follow that a steam boiler must be kept in operation on them for no other purpose than to sound the whistle. It is plain that the Legislature could not have intended those statutes to include the operation of railroad motor cars. The fact that a statute affects public safety does not warrant an interpretation which will make it comply with changed conditions and different modes of travel when the plain language of the statute makes it inapplicable to new conditions and different modes of travel."

In Hudson v. Southwest Mo. R. Co., 173 Mo. App. 611, 159 S. W. 9, 12, it was held that a statute which required a bell or steam whistle on each locomotive engine to be sounded at least 80 rods from a highway crossing, Rev. St. 1909, § 3140, did not apply to a trolley car operated by electricity. The court said that " 'locomotive engine, ' and 'steam whistle' unmistakenly point to motor engines generating and driven by steam power, '' and cites as sustaining that view Stranahan v. Sea View Ry. Co., 84 N. Y. 308. That court was of opinion that a railroad operated by steam "plainly has reference to railways moving cars in the ordinary way by means of locomotive engines." See, also, Henson v. Williamsville, C. & St. L. Ry. Co., 110 Mo. App. 595, 85 S. W. 597. There a car in the nature of a handcar was driven by gasoline.

Cook v. Mo. Pac. Ry. Co., 160 Ark. 523, 254 S. W. 6SO, reheard and reported in 169 Ark. 1211, 277 S. W. 345, 346, was an action brought to recover damages for injuries suffered in acrossing accident. The court in the course of its opinion said:

"Appellant's prayer for instruction No. 3 was erroneous, because it was an attempt to have the lookout statute (section 85(58, C. & M. Digest), applied to the running of motor cars. Likewise the appellant's prayer for instruction No. 6 was erroneous, for the reason that it was an attempt to have the statute in regard to the duty of railroads to give signals at crossings (section S56Sa, C. & M. Digest) applied to motor cars."

In Yazoo & M. V. R. Co. v. Day, 120 Miss. 296, 82 So. 148, 149, it appears that the car which did the damage at a crossing accident was a gasoline driven car equipped to carry twenty men and used in the place of an old hand car. It was held that the crossing statutes did not apply. The court said:

"There was no violation of any statutory duty in failing to give a signal for the crossing, or in failing to have a headlight upon the car. Section 4045, Code of 1906 (section 6669, Hemingway's Code), requiring locomotive engines to be...

To continue reading

Request your trial
28 cases
  • Hereford v. Meek, (CC 742)
    • United States
    • West Virginia Supreme Court
    • March 1, 1949
    ...152 Va. 903, 147 S.E. 249; Chesapeake and Ohio Railway Company v. Hewin, 152 Va. 649, 148 S.E. 794; Franklin & P. Railway Company v. Shoemaker's Committee, 156 Va. 619, 159 S.E. 100; City of Richmond v. Grand Lodge of Virginia, A. F. & A. M., 162 Va. 471, 174 S.E. 846; Simpson v. Simpson, 1......
  • Hereford v. Meek
    • United States
    • West Virginia Supreme Court
    • March 1, 1949
    ... ... Chesapeake and Ohio Railway Company v. Hewin, 152 ... Va. 649, 148 S.E. 794; Franklin & P. Railway Co. v ... Shoemaker's Committee, 156 Va. 619, 159 S.E. 100; City of ... Richmond v ... ...
  • Board of County Com'rs. of Big Horn County v. Brewer
    • United States
    • Wyoming Supreme Court
    • November 24, 1936
    ... ... [62 P.2d 689] ... must be comprehensive enough to include them." ... Franklin & P. Ry. Co. v. Shoemaker's Committee, ... 156 Va. 619, 159 S.E. 100. To the same effect are ... ...
  • South v. Com.
    • United States
    • Virginia Supreme Court
    • December 20, 2005
    ...that, if the legislature had thought of it, very likely broader words would have been used." Franklin & Pittsylvania Ry. Co. v. Shoemaker, 156 Va. 619, 624, 159 S.E. 100, 102 (1931) (quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, The Commo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT