Godwin v. Camp Mfg. Co.

• Decision Date: 15 January 1945
• Docket Number: Record No. 2827.
• Citation: 183 Va. 528
• Parties: MILLS E. GODWIN, JR., ADM'R, ETC. v. CAMP MANUFACTURING COMPANY, A CORPORATION.
• Court: Virginia Supreme Court

Page 528

183 Va. 528

MILLS E. GODWIN, JR., ADM'R, ETC. v. CAMP MANUFACTURING COMPANY, A CORPORATION.

Record No. 2827.

Supreme Court of Virginia, Richmond.

January 15, 1945.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

CROSSINGS — Accidents at Crossings — Duty of Railroad Company — Contributory Negligence of Traveler — Case at Bar. — In the instant case, an action to recover for the death of plaintiff's decedent in an accident at a railroad crossing, the evidence showed that defendant's employees cut out from a train some cars and left them behind on an incline after attempting to chock them. On account of their momentum they jumped the chocks and rolled down to the crossing, completely blocking it. An automobilist, traveling in a direction opposite from plaintiff's decedent, stated that the flagman of the train flagged him down and then put his lantern down and left to get an employee to clear the crossing. This automobilist also testified that he saw plaintiff's decedent approaching and attempted to flag him but did not have time. The accident happened at night and there was evidence to the effect that the cars blocking the crossing were the same color as the road. The force of the impact demolished the automobile of plaintiff's decedent and knocked some of the cars off of the track, and this was strongly used by defendant company as indicative of a high rate of speed on the part of plaintiff's decedent, but other witnesses stated that his speed was reasonable. There was abundant evidence to prove that it was the custom of defendant company to have someone at the crossing to warn travelers of the approach of its trains and that it was decedent's habit to use the road nearly every week end traveling to and from his home.

Held: That the jury had the right to assume that plaintiff's decedent was familiar with the custom of the defendant company to have someone warn travelers at the crossing and that he had a right to rely upon the company to adhere to it for protection of users of the highway. Since the evidence of both primary and contributory negligence was conflicting it was for the jury and would not justify the Supreme Court of Appeals in holding that plaintiff's decedent was guilty of negligence as a matter of law.

Error to a judgment of the Circuit Court of Nansemond county. Hon. John K. Hutton, judge presiding.

The opinion states the case.

Charles B. Godwin, Jr., for the plaintiff in error.

Bowles, Anderson & Boyd and J. R. Saunders, for the defendant in error.

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

The accident which is the basis of this case happened on the 8th day of February 1941 between 1 and 2 o'clock in the morning. George Dempsey Langston, an unmarried man 22 years of age, was driving an automobile from his home, at Gates, North Carolina, to Newport News, Virginia, after attending, with his sister, the "President's Ball" at Gates. His route was northwardly on the Suffolk-Whaleyville highway, which is crossed nearly at right angles, in a wooded section in Nansemond County, Virginia, by a standard gauge a railroad, belonging to the Camp Manufacturing Company, a corporation engaged in the manufacture and sale of lumber. It is what is known as a logging railroad, hauling exclusively lumber products, chiefly logs, operating between the Dismal Swamp and the company's saw mill near Franklin, Virginia. The highway extends north and south and the railroad east and west. The railroad operates a log train going west to Franklin each morning and returning in the afternoon. It is only occasionally that late night trips are made. The highway is a State road leading from the city of Suffolk into North Carolina. It is a frequently travelled way and its macadamed surface is composed of top gravel and tar which is dark in color. Very close to the point of the crossing the area is wooded on three sides the effect of which is to shade it. From a curve in the highway going north to and beyond the crossing the distance is straight for something like a half of a mile without anything to obscure the view.

The plaintiff in error's decedent, Langston, as we have seen, was going north and approached the crossing between one and two o'clock A.M. He was alone. It is in evidence that the usual railroad crossing signs were present and in order. That the one bearing the Virginia legend which announces the presence of the crossing and the legal rate of speed, bore a number of reflectors which illumine when the rays from the headlights of an automobile are in contact with them. Just before Langston reached the crossing an automobile was approaching from the north, being driven by a man named Brinkley whose only companion was a man named Parker. A few moments before this the company's train had approached the crossing and had stopped about 50 feet from the west side of the highway. On the south side of the crossing the company maintains what is called a "bunching place" for the storage of logs which, at this time, were stored out to the highway. West of the crossing there is an incline in the railroad track toward the highway. If cars are left on the track west of this incline unattached to an engine they will roll down and come to rest at the crossing where it is level, unless the loose cars are securely chocked, to prevent it. The brakeman and the fireman, Willie White and David Williams, testified that upon the approach of the train to the crossing they left their positions and went out on the crossing to flag it, each having two lanterns, one white for the purpose of lighting the employee and the other red for the purpose of warning travellers. The fireman "set his red lantern down in the middle of the highway — on the side of the highway, and went back and cut the cars". It appears that they cut out from the train some of the cars to carry them over to the yard for use the next day. Some of them were left beyond the incline and an attempt was made to chock them but this was ineffectual. On account of their momentum they jumped the chocks and rolled down to the crossing, completely blocking it. In the meanwhile the brakeman, after waving the engineer on, caught the rear car and went up in the yard with the train. The fireman testified that he crossed the track and picked up the red lantern which had been left on the side of the road and "blinded the lights behind a log car" after he had turned the traffic by. Almost momentarily the crossing became blocked, as above stated, and the fireman flagged down the Brinkley car going south. Brinkley testified that the man who flagged him down "set his lantern down" and went up to get an employee to clear the crossing. At this point Brinkley testified as follows: "While he was gone, this Langston came along. I thought he was going to stop. My car was sitting there with the lights on. Hadn't anyone told me to flag him. The lantern was sitting there. He was coming, and I did not think he was going to stop. He was getting close, so I picked the lantern up, and was going to flag him, I guess, but I didn't have time then. I was on the opposite side from him, too." The cars that rolled down the incline were empty and weighed about 15,000 pounds. They were without brakes, unlighted, and at the time of the accident unattended. They carried no whistles or other means of creating a noise to warn of their presence or approach.

The witness...