Gregory v. Seabd. Air Line Ry. Co

• Decision Date: 28 May 1925
• Citation: 128 S.E. 272
• Parties: GREGORY. v. SEABOARD AIR LINE RY. CO.
• Court: Virginia Supreme Court

128 S.E. 272

GREGORY.

v.SEABOARD AIR LINE RY. CO.

Special Court of Appeals of Virginia.

May 28, 1925.

Error to Circuit Court, Dinwiddie County.

Action by Prank G. Gregory against the Seaboard Air Line Railway Company. Verdict for plaintiff was set aside, and judgment entered for defendant, and plaintiff brings error. Reversed.

Goode & Barrow, of Richmond, for plaintiff in error.

Munford, Hunton, Williams & Anderson, and Whiting C. Faulkner, all of Richmond, for defendant in error.

CHRISTIAN, J. Frank G. Gregory brought an action in the circuit court of Dinwiddie county against the Seaboard Air Line Railway Company, a corporation, to recover $5,000 damages for the destruction of his automobile truck in a collision with one of the defendant's fast trains at Burgess Station, in that county, on the 19th day of April, 1923. The jury that tried the case rendered a verdict for $2,500, which the court upon motion of defendant set aside, and by virtue of section 6251, Code of Virginia 1919, enter-ed judgment for the defendant. The case is before us for review of this action of the circuit court.

There was a considerable quantity of evidence submitted to the jury by both parties, but the issue for decision is in such a narrow compass, and has been argued on both sides with such ability, that it will not be necessary to detail much of the evidence but only sufficient facts to intelligently apply the law.

At Burgess Station where the collision occurred, the railroad of the defendant is straight for the distance of 3 miles, or a mile and a half both south and north of the crossing. From the national highway which runs in the same general direction as the railroad, and about a half mile therefrom, runs east to Burgess Station what is known as the Burgess road. This road approaches the grade crossing going east at an angle of about 45 degrees, until about 40 feet from the railroad, when it bends to the right and crosses the railroad at right angles and continues east. This road is generally level until within 21 feet of the crossing, when a grade commences and extends to the crossing, which is about 3 feet above the general level. There is situated on the right or southern side of the Burgess road a building used as a store and dwelling, the eastern corner of which is located 75 feet from the railroad. The distance from the northeast corner of that building to the railroad along the highway is between 84 to 100 feet.

On December 19, 1921, about 12:30 p. m. the plaintiff was driving his automobile truck loaded with staves to the crossing at Burgess Station, at a rate of about 4 or 5 miles an hour, and at the same time a through express train approached the crossing from the south. Just before the plaintiff reached the east corner of the store, he looked south, where he could see the railroad for 350 feet, and then continued to look north, where there were several buildings obstructing the view of the track until the front wheels of his truck were nearly upon the track, when he looked and saw the fast moving train upon him, but too late to stop the truck, but jumped from it in time to save his life, The truck ran upon the track, was struck by the engine and demolished. The engine, tender, and two express cars were derailed, and the engine turned upon its side. After passing the east corner of the store, had the plaintiff looked south, he could have seen the railroad in that direction for 1, 000 feet, and his line of vision increased until at the crossing he could have seen the train for a mile and a half. The evidence was conflicting as to the giving of the crossing signals, and the verdict of the jury settled this issue in favor of the plaintiff. But it was in evidence by witnesses near the crossing that the station signal was blown about a mile from the station, and the roar of the train could be heard for about a mile. The plaintiff denied he heard the station signal or roar of the train, and his conduct in jumping from his truck when he discovered his peril tends to corroborate that fact. The court and jury had a view of the scene of the accident and its surroundings.

The court correctly instructed the jury in reference to the duty of the defendant company to give the statutory crossing signals, and that its failure to do so was negligence upon its part which entitled the plaintiff to recover if such negligence caused the damage to his truck. It also properly instructed the jury as to duty of the plaintiff upon approaching the railroad crossing to look and listen for approaching trains when and where such exercise of his senses would be effective, and that his failure to exercise due care would constitute contributory negligence.

The evidence in the case presented to the jury a case of concurrent negligence which the law, as it stood prior to the enactment of section 3959, Virginia Code of 1919, would not apportion, and the contributory negligence of the plaintiff would have barred any recovery. But section 3959, supra, did not change in any way the law of negligence. Its purpose is expressed by the revisors as follows:

"This section is new, and changes the holding in Atlantic & D. Ry. Co. v. Reiger, 95 Va. 418, 28 S. E. 590; and Simon's Adm'r v. Southern Ry. Co., 96 Va. 152, 31 S. E. 7. These cases were decided under Acts 1893-94, p. 827, somewhat similar to what is now section 3958 of this Code. Injuries and deaths at grade crossings were becoming so numerous that the revisors were constrained to recommend this additional legislation, the object of which is to require, for the safety of travelers, a more rigid compliance with the preceding section. The new section abolished the doctrine of contributory negligence on the part of the traveler in those cases where the operators of trains fail to give the statutory signals, and, instead of excluding such a traveler from all recovery, as was the case under the former law, it allows him or his representative to recover; but, as it did not seem just to place a traveler who had failed to exercise due care on the same footing with one who had exercised such care, the section allows the jury to consider the negligence of the traveler in mitigation of damages."

Thus was introduced into the law the doctrine of comparative negligence as applied to injuries occurring at railroad grade crossings, but the burden of proof is still upon the plaintiff to prove that the operators of the train failed to give the statutory signals, and that such failure caused the injury, while the burden of proof is upon the railroad company to prove the plaintiff's contributory negligence, or that the plaintiff's negligence was the sole proximate cause of the injury. These are matters of fact, to be ascertained by the jury from the evidence un-der proper instructions from the court, as well as the amount that the damages should be mitigated by reason of the lack of due care by the plaintiff. Norfolk & Western Railway Co. v. Simmons, 127 Va. 419, 103 S. E. 594; C. & O. Railway Co. v. Gayle, ...