Hancock v. N. & W. Ry. Co.

• Decision Date: 01 March 1928
• Citation: 149 Va. 829
• Court: Virginia Supreme Court
• Parties: MARTHA HANCOCK v. NORFOLK AND WESTERN RAILWAY COMPANY.

Page 829

149 Va. 829

MARTHA HANCOCK v. NORFOLK AND WESTERN RAILWAY COMPANY.

Supreme Court of Virginia, Richmond.

March 1, 1928.

1. AUTOMOBILES — Railroads — Accident at Crossing — Negligence of Defendant Unimportant where Contributory Negligence Shown — Case at Bar. — The instant case was an action for damages for personal injuries as a result of the car in which plaintiff was riding being in collision with defendant's train. The major portion of the testimony taken by the plaintiff was offered for the purpose of proving the negligence of defendant. But owing to the view of the case taken by the appellate court this question was unimportant, because the court was of the opinion that the right of recovery must turn upon the question of the plaintiff's contributory negligence, which presupposes the primary negligence of the defendant, and is quite independent of the negligence of the driver of the car which could not under the facts of the case be imputed to the plaintiff.

2. AUTOMOBILES — Crossings — Imputable Negligence — Negligence of Driver not Imputed to a Passenger — Duty of Passenger to Use Ordinary Care — Contributory Negligence. — The negligence of the driver is not to be imputed to a passenger, but it is the duty of a passenger to use ordinary care for his own safety. The railroad track is to him, as to others, a signal of danger, and his failure to exercise reasonable precaution for his own protection is contributory negligence and bars a recovery.

3. AUTOMOBILES — Crossings — Guest to Exercise Ordinary Care. — It is the duty of one who is riding in an automobile as a passenger, when about to cross a railroad track, to look and listen for approaching trains, and to warn the chauffeur of the near approach of a train, and prevent him from attempting to cross the tracks close in front of the train, and a failure to perform this duty amounts to negligence. He must use reasonable care to learn of the approach of a train and to keep out of its way.

4. AUTOMOBILES — Crossings — Guest to Exercise Ordinary Care — Case at Bar. — The instant case was an action for damages for personal injuries as a result of the car in which the plaintiff was riding being in collision with defendant's train. From the evidence it was obvious that had the plaintiff, who was on the front seat, looked for the on-coming train, as it was her duty to do, it could have been seen in ample time for her to have cautioned the driver of the impending peril. Plaintiff was riding on the lap of one of the occupants of the front seat, which placed her farther to the front of the car than either of her companions. Had she looked she could have seen the engine further up the track than the driver. Plaintiff admittedly did not look towards the on-coming train.

Held: That plaintiff was guilty of contributory negligence which barred her recovery.

5. AUTOMOBILES — Crossings — Look and Listen. — It is the duty of a traveler before attempting to cross a railroad track at a crossing to look in both directions and to listen for approaching trains. The duty of looking and listening before crossing a railroad track must be discharged in a way to make looking and listening effectual.

6. AUTOMOBILES — Crossings — Ordinary Care to be Exercised by Passenger Sitting on the Lap of Another — Case at Bar. — In the instant case, an action by a guest in an automobile against the railroad for damages for injuries resulting from a collision at a crossing between the automobile and defendant's train, plaintiff was sitting across the lap of another passenger in the car, facing away from the approaching train, but this furnished no excuse for plaintiff not looking both ways when about to cross a railroad track with the location of which she was familiar. A person cannot disqualify themselves from observing the ordinary rules of prevision for their safety and then plead the self imposed conditions as an excuse for failure to exercise vigilance. To have turned her head, and her body if necessary was a simple and easy movement in her position.

7. AUTOMOBILES — Crossings — Duty of Passenger — Case at Bar. — In the instant case plaintiff, a passenger in an automobile, was injured in a collision between the automobile and a train at a crossing. Whatever may have been the difficulties in the way of a clear vision of the approaching train, they could not have contributed to the accident in so far as plaintiff was concerned, as she admittedly made no effort to overcome the difficulties or to observe the dangers toward which they recklessly rushed. "Thoughtlessness is negligence."

Held: That plaintiff could not recover because of her contributory negligence.

8. AUTOMOBILES — Crossings — Look and Listen — Contributory Negligence — Questions of Law and Fact. — There are cases in which the question as to whether the traveler was guilty of negligence in going on the track without looking and listening is one for the jury; as, for example, where there was a silent gong, where the watchman failed to perform his duty, flying switches, etc.

9. STARE DECISIS — Opinions of Court — Construction. — It is axiomatic that expressions of the courts must be interpreted as applying to the facts of the case with reference to which they are used, and, therefore, cannot always be relied upon to establish the law in cases of the same general character but with material differences as to the facts.

10. AUTOMOBILES — Crissings — Contributory Negligence — Questions of Law and Fact — Case at Bar. — The instant case was an action against a railroad for injuries sustained by a passenger in an automobile when the automobile and a train of defendant collided at a crossing. The law in Virginia requires a passenger or guest in an automobile to use ordinary care for his safety in approaching and crossing a railroad track. This law plaintiff confessedly ignored and was immediately in collision with the locomotive. Under this state of facts the law fixes negligence upon her, and there is no issue for the jury to determine.

Error to a judgment of the Circuit Court of Appomattox county, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

S. L. Ferguson, Joel W. Flood, and Volney E. Howard, for the plaintiff in error.

W. Moncure Gravatt, for the defendant in error.

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

This was an action at law brought in the Circuit Court of Appomattox county for damages for personal injuries as a result of the car in which plaintiff was riding being in collision with defendant's train. At the trial, defendant demurred to the evidence which the court sustained, and entered judgment for the railway company. Plaintiff brings error.

The parties in this court occupy the same positions as in the court below and will be referred to as they appeared there.

Plaintiff was injured on July 11, 1925, at a highway crossing in the corporate limits of the town of Pamplin, when the open Ford "runabout" in which she was riding came in collision with the east bound passenger train No. 8 of the defendant company, in the afternoon of that day.

There were in the car at the time two men and martha Hancock, the plaintiff. The highway crosses the railway at right angles and runs north and south, and the car in which plaintiff was riding was traveling north. Frizzell Cole was driving the car and Sampson Madison was on his right, with the plaintiff, Martha Hancock, sitting across his lap, with her face turned toward the east.

The plaintiff's contention is that the defendant was negligent in approaching the crossing without giving timely warnings to travelers on the highway and particularly at this place which was permitted to be and remain in a dangerous condition as a direct result of which she was injured.

The position of the defendant company may be best understood by a reading of its demurrer to the evidence, which follows:

"1. Because the plaintiff's negligence in going on the crossing without looking in a westerly direction from which train No. 8 was coming is the sole proximate cause of her injury.

"2. Because plaintiff's evidence shows that the defendant's train crew performed the duties required of those in charge thereof in the matter of giving the warning signals demanded by law in approaching said crossing.

"3. Because the evidence shows the defendant was not guilty of any negligent act which was the sole proximate cause or the proximate cause of the injury complained of.

"4. Because the plaintiff's negligence contributed to and caused the injury complained of and bars her right to recover in this case irrespective of the alleged negligence of the defendant.

"5. Because plaintiff admits that she went on the crossing without giving the train a thought, without asking the driver to stop before going on the crossing and without looking in both directions, although she admits she had seen the tracks and knew the railroad was in front of her, having been to Sizemore's store before and over this crossing, and this conduct was negligence on her part which bars her right to recover.

"6. Because plaintiff's evidence shows that there was a space of ten feet or more south of the south rail of this crossing at which an automobile could be stopped and the occupants see a train approaching from the west for a considerable distance, and plaintiff could likewise have seen had she looked.

"7. Because plaintiff having accepted the invitation to ride in the automobile cannot fail to look and listen and shut her eyes to danger, and then claim that the driver is negligent and that because she could not operate the car or handle the control thereof she is no way responsible for his negligence, because her failure to look and listen under these circumstances is also negligence which bars her right to recover.

"8. Because plaintiff and Cole, the driver, were engaged in a joint enterprise and the negligence of...