Gunter's Adm'r v. Southern Ry. Co

• Decision Date: 22 January 1920
• Citation: 101 S.E. 885
• Parties: GUNTER'S ADM'R. v. SOUTHERN RY. CO.
• Court: Virginia Supreme Court

101 S.E. 885

GUNTER'S ADM'R.

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

Jan. 22, 1920.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Last Clear Chance.]

Sims, J., dissenting in part.

Error to Circuit Court, Pittsylvania County.

Action by Lena W. Gunter's administrator against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Harry Wooding, Jr., of Danville, and J. R. Joyce and P. W. Glidewell, both of Reidsville, N. C, for plaintiff in error.

R. B. Tunstall, of Norfolk, and Withers, Brown & Leigh, of Danville, for defendant in error.

BURKS, J. This is an action to recover for the death of Lena W. Gunter. After all the evidence had been introduced, the defendant demurred to the evidence, and the court sustained the demurrer and entered judgment for the defendant. To that judgment this writ of error was awarded.

Viewed from the standpoint of the demurrer to the evidence the case was as follows: On the 16th day of August, 1916, between 9 and 10 o'clock p. m., Lena W. Gunter, a young white woman, 22 years of age, was killed on the track of the Southern Railway Company at Schoolfleld, Pittsylvania county, Va., by a north-bound train of the Southern Railway Company.

Schoolfield is a cotton mill village of some 5, 000 or 6, 000 inhabitants, located just southof the city of Danville, adjoining said city, and, though not in the corporate limits, is a southern suburb of Danville.

The tracks of the Southern Railway Company, consisting of a double-track main line and a spur track, parallel thereto, run through the village of Schoolfield, practically through the middle of said village, while the streets of Schoolfield run at right angles to said railway tracks; some of said streets coming to an end at the railway tracks, and some of said streets crossing said tracks. There are well-defined paths along the railway tracks, and the best path is in the center of the rails of the north-bound track, leading from a point in the extreme southern end of Schoolfield all the way to and beyond the street on which Lena W. Gunter lived, called Stokesland avenue.

This path between the rails of the northbound track is the best way to travel, and people traveling on foot leave the road and walk along the railroad, mostly on this path between the rails of the north-bound track; in fact, people are and have been for many years (ever since Schoolfield has been a village), with the knowledge of the railway company, constantly using this track as a walkway at all hours of the day and night, and it was on this much-used path that runs along said north-bound track that Lena W. Gunter was killed.

On the night of the accident Lena W. Gunter had walked along said north-bound track in a northerly direction along said path for several hundred yards. The track at that place is practically straight for half a mile, and lighted by the light of the street lamps near by. She was in perfectly plain view of the engineer, certainly for 500 yards, and some say for a much greater distance. She was returning from church in company with three sisters, Mrs. Jarrett, Mrs. Collins, Mrs. Hawkins, and a man named Will Ray. Mrs. Collins and Lena W. Gunter were on the said north-bound track, having gotten on it at Stuart street, a short distance from the church they attended. They were holding hands and in a close conversation, walking slowly down the path between the rails, and so continued until Lena was struck by the train. One witness said that now and then they "would punch one another, and kind of shove one another, and it seemed that they were not paying any attention to the train."

There were five people in this party, who were close enough together to touch each other. Lena and her sister were walking between the rails; the other two sisters and Ray in the space between the two sets of double track. The train was running downgrade, coasting, with the steam shut off, at the rate of 50 miles an hour, and was making little or no noise. No one of the party at any time looked back, and the testimony of the surviving sisters is that no whistle was blown, bell rung, or any other sign of danger given; that the track was lighted on each side by city lights, and that there was no noise of any kind from the train until almost at the instant of impact, when they jumped and endeavored to clear the track. Mrs. Collins in this way escaped injury, but Lena, who was on the far side, failed to clear the track and was struck by the engine. None of the party knew anything of the approaching train up to this time. The engineman discovered the parties on the track when 500 yards distant, and they were in full view of him on a straight track from that time until. Lena was struck, and the fair inference is that he was looking at them the whole time, but expected them to get off.

From the foregoing statement of facts it appears that the deceased was a licensee on the tracks; that no question arises as to the duty to keep a lookout for her protection, as the engineman saw her all the time; and that the only question involved is the application of the doctrine of "the last clear chance." This doctrine has been often invoked in the courts of this commonwealth, and a large number of the prior cases are cited in the opinion of this court in Ches. & Ohio Ry. Co. v. Corbin, 110 Va. 700, 67 S. E. 179. Since that opinion was delivered there have been many other cases, involving the same doctrine, some of which, and a few prior ones, are cited in the footnote for convenience of reference.¹

In selecting some of these for comment, we shall eliminate all that do not involve injury to persons on railroad tracks; those involving such injuries where it is manifest that the person injured was not in the possession of his faculties, like Seaboard R. Co. v. Joyner, 92 Va. 354, 23 S. E. 773, where a boywas killed while asleep on the track; those involving persons in a helpless condition, like Washington & O. D. R. Co. v. Ward, 119 Va. 334, 89 S. E. 140, where a boy 8 years of age was killed on a railroad bridge; and those where it is manifest the doctrine has no application, like Derring v. Va. Ry. & P. Co., 122 Va. 517, 95 S. E. 405, where a person stepped on the track immediately in front of a rapidly approaching train in full view.

The basis of recovery is the negligence of the defendant; that is, the breach of some duty imposed by law, common or statute. It is always incumbent on the plaintiff to establish this, as it will never be presumed, and in its absence there can be no recovery. After the defendant's negligence has been established, if it be shown that the plaintiff also was guilty of negligence which proximately contributed to his injury, there cannot, as a general rule, be any recovery, as the courts will not lend their aid to apportion the injury between two wrongdoers. But this rule is a harsh one, and at times works great hardship, so that the courts have felt compelled to qualify it, or make an exception to it, independently of cases specially provided for by statute, and to declare that, while the general rule would be enforced in cases where the negligence of both parties was concurrent and continuous down to the time of the injury, they would not enforce it, but would allow a recovery in that class of cases where, although the plaintiff had been negligent in the first instance and that negligence had proximately contributed to his injury, there was an appreciable interval of time between the plaintiff's negligence and his injury, during which the defendant by the exercise of ordinary care, could and ought to have avoided the effects of the plaintiff's prior negligence, but failed to do so. This is a just and humane qualification or exception, and is generally designated as the doctrine of the "last clear chance." It has been formulated in several recent cases in this court.

In the late case of Norfolk So. R. Co. v. Smith, 122 Va. 302, 94 S. E. 789, it is said that the doctrine of the last clear chance is nowhere better stated than in the syllabus to Roanoke Ry. & Elec. Co. v. Carroll, 112 Va. 598, 72 S. E. 125, as follows:

"The underlying principle of the doctrine of the 'last clear chance, ' as declared by the decisions of this court, is that, notwithstanding the contributory negligence of the plaintiff, there is something in his condition or situation at the time of the injury to admonish the defendant that he is not able to protect himself. The doctrine is one of prior and subsequent negligence, or of remote and proximate cause, and presupposes the intervention of an appreciable interval of time between the prior negligence of the plaintiff and the subsequent negligence of the defendant. Where the negligence of both continues down to the moment of the accident and contributes to the injury, the case is one of concurring negligence, and there can be no recovery."

In Real Estate, etc., Co. v. Gwyn, 113 Va. 337, 345, 74 S. E. 208, 212, it is said that, in order for the doctrine of the last clear chance to apply:

"It must appear that, in contemplation of the entire situation, after the danger of the plaintiff became known to the defendant, or ought to have been discovered by him by the exercise of ordinary care, he negligently failed to do something which he had a clear chance to do to avoid the accident. But the doctrine can have no application to the case where the negligence of both plaintiff and defendant is simultaneous and concurrent."

The fullest discussion we have of the doctrine in any opinion of this court is found in the opinion of Keith, P., in Southern By. Co. v. Bailey, 110 Va. 833, 67 S. E. 365, 27 D. R. A. (N. S.) 379, which has been since frequently quoted. After considering a number of cases from this and other jurisdictions, and adverting to the general rule applicable to concurrent negligence, Keith, P., speaking for the whole court, says:

"The general rule adverted to...