Jackson v. C. & O. Ry. Co.
| Decision Date | 08 June 1942 |
| Docket Number | Record No. 2526. |
| Citation | 179 Va. 642 |
| Court | Virginia Supreme Court |
| Parties | CHARLES JACKSON v. THE CHESAPEAKE & OHIO RY. CO. |
Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.
1. CROSSINGS — Code Section 3958 — Admissibility of Evidence of Failure to Give signals at Subsequent Times — Case at Bar. — In the instant case, an action to recover for injuries received while riding in a truck which was struck by a train at a railroad crossing, the vital issue for determination was whether the statutory crossing signals required by section 3958 of the Code of 1936 had been given. Thirty-four witnesses testified for defendant and eight for plaintiff. The engineer in charge at the time of the accident testified that he always gave the required signals, and that on account of the number of trucks at that season gathered in the vicinity to haul peaches he gave two sets of signals. In rebuttal plaintiff offered to introduce the testimony of a resident of the town in which the accident occurred to the effect that on seven days, seven months after the date of the accident, some traffic signals were given but that they were not the signals required by the statute. Counsel for plaintiff expressly stated to the trial court that this evidence, which was rejected, was offered for the sole purpose of impeaching the engineer and that it had no probative value, but in the Supreme Court of Appeals it was alleged that the evidence was admissible because it tended to prove a negligent custom and habit and, therefore, had probative value on the issue of whether the crossing signals were given.
Held: That the admissibility, as well as the probative value, of the class of evidence to which the rejected evidence belonged depended in a large measure upon the circumstances in which it was offered; and that, in the instant case, the specific acts of negligence claimed to have been committed seven months after the alleged negligent act which caused the injury were too remote in time and too indefinite in substance to be relevant to the question of whether the crossing signals were given at the time of the accident.
2. AUTOMOBILES — Actions for Injuries — Admissibility of Evidence of Prior Habits of Cautious Driving. — Where the driver of an automobile or an employee of a railroad is alleged to have been negligent in a traffic accident case, and where there were eyewitnesses, evidence that on former occasions such driver or employee had been in the habit of conducting himself as a careful and cautious driver, or had pursued a certain line of conduct, is ordinarily not admissible to show that he was acting with care and caution or otherwise, or was following the same method when the accident in question happened.
3. EVIDENCE — Admissibility — Collateral Facts — Generally Excluded. — Evidence must be confined to the point in issue, and hence evidence of collateral facts, from which no fair inferences can be drawn tending to throw light upon the fact under investigation, is excluded, the reason being that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and, moreover, the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it.
4. EVIDENCE — Admissibility — Collateral Facts — Evidence of Negligent Habits Generally Excluded. — In actions for negligence the courts generally deny the admissibility of evidence of the reputation of the defendant for negligence, his habits of negligence, his habitual negligent conduct, etc., upon the issue of his negligence at the time of the injury complained of.
5. APPEAL AND ERROR — Exceptions and Objections — Objections to Admission of Evidence — New Grounds Cannot Be Relied upon in Appellate Court. — A party will not be allowed to specify one or more grounds of objection to evidence offered in the trial court and rely upon other grounds in the appellate court. He is regarded as having waived all other objections to the evidence except those he pointed out specifically.
6. EVIDENCE — Admissibility — Objections to Admission Should State Grounds of Objection. — It is the duty of a party, as a rule, when he objects to evidence, to state the grounds of his objection, as that the trial judge may understand the precise question or questions he is called upon to decide. The judge is not required to search for objections which counsel have not discovered, or which they are not willing to disclose. It is also due to the party whose evidence is objected to, that the grounds of objection should be specified, so that he may have an opportunity to remedy the defect pointed out, if possible, and have the case tried upon its merits.
7. APPEAL AND ERROR — Scope of Review — Parties Must Stand on Case Made in Trial Court. — The parties must stand or fall upon the case as made in the trial court. An appellate court is not a forum in which to make a new case. It is merely a court of review to determine whether or not the rulings and judgment of the court below upon the case as made there were correct. Any other rule would overturn all just conceptions of appellate procedure in cases at law, and would result in making an appeal in such action a trial de novo, without the presence of witnesses, or the means of correcting errors and omissions.
8. APPEAL AND ERROR — Exceptions and Objections — Exception to Exclusion of Evidence — New Grounds Cannot Be Relied upon in Supreme Court of Appeals — Case at Bar. — In the instant case, an action to recover for injuries received while riding in a truck which was struck by a train at a railroad crossing, the vital issue for determination was whether the statutory crossing signals required by section 3958 of the Code of 1936 had been given. Thirty-four witnesses testified for defendant and eight for plaintiff. The engineer in charge at the time of the accident testified that he always gave the required signals, and that on account of the number of trucks at that season gathered in the vicinity to haul peaches he gave two sets of signals. In rebuttal plaintiff offered to introduce the testimony of a resident of the town in which the accident occurred to the effect that on seven days, seven months after the date of the accident, some traffic signals were given but that they were not the signals required by the statute. Counsel for plaintiff expressly stated to the trial court that this evidence, which was rejected, was offered for the sole purpose of impeaching the engineer and that it had no probative value, but in the Supreme Court of Appeals it was alleged that the evidence was admissible because it tended to prove a negligent custom and habit and, therefore, had probative value on the issue of whether the crossing signals were given.
Held: That under Rule 22 the Supreme Court of Appeals would not consider whether the excluded evidence tended to prove that the engineer was habitually negligent in failing to give the statutory signals since that ground of objection to the evidence was not made in the lower court.
Error to a judgment of the Circuit Court of Albemarle county. Hon. Lemuel F. Smith, judge presiding.
The opinion states the case.
Denny, Valentine & Davenport, C. Denny White, T. Munford Boyd and Junius R. Fishburne, for the plaintiff in error.
Leake & Spicer, for the defendant in error.
This action was brought to recover damages for personal injuries sustained by Charles Jackson, while riding in the cab of a truck driven by a companion, in a railway crossing accident at Crozet, Virginia. The trial court entered judgment for defendant on the verdict of the jury. From that judgment this writ of error was awarded plaintiff.
The one vital issue to determine the negligence of defendant was whether the statutory crossing signals required by Code, sec. 3958, were sounded on August 23, 1940 — the date of the accident. On this issue thirty-four witnesses, eight for plaintiff and twenty-six for defendant, were introduced.
The testimony of three of the witnesses introduced by plaintiff on this issue was negative, the testimony of four was positive that the proper crossing signals were not sounded, and one witness was impeached.
The testimony of the twenty-six witnesses called by defendant is positive that the crossing signals were given. Several of these witnesses said that they did not hear the bell, but they emphasized the fact that they heard an unusual number of blasts of the whistle and that it was blown almost continuously for several hundred yards west of, and until the engine passed, the crossing.
The railway crossing signals required by statute consist of two sharp sounds of the whistle and a continuous ringing of the bell, or the whistle sounded continuously or alternately with the bell from a point at least 300 yards, and not more than 600 yards, from the crossing. The crossing signals required by the defendant company consist of four blasts of the whistle — one long, two shorts and a prolonged blow — and continuous ringing of the bell. In other words, the railway company requires four blasts of the whistle while the statute requires only two blasts. However, when employees of the railway company refer to the "crossing signals" or the "crossing blows," evidently they refer to the "crossing signals" or "crossing blows" required by the company and not those required by statute.
Passenger train No. 4, which struck the truck involved in the accident, was pulled by two engines. G. I. Grasty, the engineer in charge of the front engine, on direct examination, stated that, on account of the number of trucks which usually gathered in Crozet during the peach season, he gave two sets of crossing blows instead of one, and that on the day of the accident he gave two sets of crossing signals, one a little before reaching the whistle post. On cross-examination, he...
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