Hancock v. Norfolk & W. Ry. Co

• Decision Date: 01 March 1928
• Court: Virginia Supreme Court
• Parties: HANCOCK . v. NORFOLK & W. RY. CO.

141 S.E. 849

HANCOCK .

v.NORFOLK & W. RY. CO.

Special Court of Appeals of Virginia.

March 1, 1928.

Christian, J., dissenting.

Error to Circuit Court, Appomattox County.

Action by Martha Hancock against the Norfolk & Western Railway Company. To review a judgment for defendant, plaintiff brings error. Affirmed.

S. L. Ferguson and Joel W. Flood, both of Appomattox, and Volney E. Howard, of Lynchburg, for plaintiff in error.

W. Moncure Gravatt, of Blackstone, for defendant in error.

McLEMORE, J. 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 plaintiffs 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 southof 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 the driver bars plaintiff's right to recover.

"(9) Because the evidence fails to show any negligent act of the defendant, or its agents, which was the sole proximate cause of the plaintiff's injury, the defendant having performed every act required of it."

The accident having occurred within the corporate limits of the town of Pamplin, although practically in the country, about 550 yards west of the station, and no ordinance having been enacted regulating the signals or warnings to be given by railway trains in approaching crossings therein, it is conceded that the common-law duty to give reasonable and timely warnings controls, and section 3958 of the Code has no application.

It would seem unnecessary to restate the law which controls the courts in determining whether or not a demurrer to the evidence should be sustained. This being before us upon a demurrer, the well-known principles applicable in such cases must apply and be determinative of the conclusions that should be reached.

The major portion of the testimony taken by the plaintiff was offered for the purpose of proving the negligence of the defendant in approaching the crossing where the collision occurred.

In our view of the case this question becomes unimportant, because we are of the opinion that the right of recovery must turn upon the question of the plaintiff's contributory negligence, which, for the purpose of this discussion, 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 this case, be imputed to the plaintiff.

The law in this state defining the duty of a passenger or invited guest while riding in a vehicle which collides with a locomotive has been declared in the case of Southern Railway Co. v. Jones' Adm'r, 118 Va. 685, 88 S. E. 178, wherein Judge Keith says:

"The negligence of the driver is not to be imputed to a passenger, but it is the duty of the traveler 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."

The same doctrine is announced in Atlantic & D. R. Co. v. Ironmonger, 95 Va. 629, 29 S. E. 319; Virginia R. Co. v. Skinner, 119 Va. 843, 89 S. E. 888. These cases are in accord with the views expressed by the courts of last resort in a large majority of the states of this country:

"An automobile passenger * * * is bound to exercise ordinary care for his own safety, without which the injury received in a collision is attributable to his own negligence." Carpenter v. Atchison, 51 Cal. App. 60, 195 P. 1073.

"All that can be required of a guest in an automobile who has no control over it, is to look and listen and warn the driver of approaching danger at a crossing." Parker v. S. A. L. Ry. Co., 181 N. C. 95, 106 S. E. 755.

"A guest, riding in the front seat with the driver of an automobile, is required, in the exercise of ordinary care, to keep a vigilant lookout for trains when approaching a railroad crossing." Barrett v. Chicago, M. & St. P. Ry. Co., 190 Iowa, 509, 175 N. W. 950, 180 N. W. 670.

"Though passenger in automobile was merely a guest, it was his duty on approaching a railway crossing, to look and listen according to his opportunity, and, if he did not, he assumed the risk." Robison v. Oregon-Wasnington R. & Nav. Co., 90 Or. 490, 176 P. 594.

"One riding with another driving an automobile over a railroad crossing must exercise due care for his own safety by looking and listening, whether he is a guest or otherwise." Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S. W. 437.

Passenger in automobile who did not request driver to stop or take necessary precautions while approaching dangerous railway crossing was guilty of contributory negligence, barring recovery for personal injury from collision, though no signal was given. Morris v. Chicago, B. & Q. R. Co., 101 Neb. 479, 163 N. W. 799.

Berry on Automobiles (4th Ed.) § 590, states the law as follows:

"Collisions with Railroad Trains—Duty of Occupant. 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."

These authorities leave nothing to be supplied by this court in fixing the degree of care for his own safety to be observed by a passenger or guest riding in an automobile, when approaching a railroad crossing.

Did the plaintiff observe that care im-mediately prior to the injury which the law imposes upon her?

From the photographs filed in the record, and the undisputed testimony of the witness who took the pictures, it appears that, in approaching the east-bound track of the railroad, and 33 feet from its center, a man can be seen on the south track 297 feet west of the crossing, and, when 21¹/₂ feet from the center of the east-bound track, he can be seen a distance of 934 feet from the crossing. An approaching engine could be seen as far, perhaps considerably further.

It seems obvious, therefore, that, had the plaintiff looked for the on-coming train, as was her duty to do, it could have been seen in ample time for her to have cautioned the driver of the impending peril.

"This court has repeatedly held that the duty of looking and listening for approaching trains before crossing a railroad track must be discharged in a way to make looking or listening effectual." U. S. Spruce Lumber Co. v. Shumate, 118 Va. 471, 87 S. E. 723; Southern Railway Co. v. Jones, 106 Va. 412, 56 S. E. 155; Murden v. Virginia Railway...