"This was an action brought in this court by the plaintiff to recover damages for personal injuries alleged to have been sustained by the negligence of the defendant. The case was tried on June 11th, 1931, resulting in a verdict for the plaintiff in the amount of $1,500.00. The defendant by counsel moved that the verdict of the jury be set aside and that judgment be entered for the defendant on the grounds that the verdict is contrary to the law and the evidence, and contrary to the instructions of the Court; that the Court erred in giving certain instructions objected to by the defendant, and in failing to give certain instructions asked by the defendant; that the verdict is without evidence to support it; for misdirection by an error of the Court in including certain testimony objected to by the defendant and excluding certain other testimony sought to be introduced by the defendant; and because the verdict records a plain deviation from right and justice.
"The salient facts in this case are these: On August 31st, at 4:22 A. M., the automobile in which the plaintiff was riding was in collision with a train of the defendant in the town of Ashland, Virginia, at the point where the Charlottesville Highway crosses the main line of the defendant. As a result of this collision the plaintiff suffered injuries consisting of lacerations to the head and a broken leg.
"Lonzi Johnson, the father of and chief witness for the plaintiff, testified that he and his wife, his two year old son and his seven month old daughter (the plaintiff) were invited by one, Richard Morris, to go to Waynesboro with him in a car belonging to Morris and his sister. Pursuant to the invitation Johnson, his wife and two children, one Harvey Glass and Richard Morris started from Richmond at 3:45 A. M., on the morning of August 31, 1930, en route to Waynesboro via the Richmond-Washington Highway from Richmond to Ashland and thence over the Charlottesville Highway through Ashland.
"At the time of the accident Morris occupied the driver's seat on the left side of the front seat, with Harvey Glass on his right. Johnson occupied the right corner of the rear seat. Next to him was his son, and in the left corner of the rear seat was his wife with her daughter on her lap. The car In which they were riding was a Chevrolet six cylinder coach.
"Johnson testified that in driving from Richmond to the place of the accident the car was at no time driven at a speed exceeding 25 or 30 miles an hour. He says the accident occurred as follows!
" 'Q. When you got to Ashland what did you do?
" 'A. When we got to Ashland we turned out on 39 Road, and when we got to this crossing he threw his hand down, like that (indicates) in case any one was behind him; when we got to the east curbing we came almost to a stop, and looked up the track south towards Richmond; we saw nothing and heard nothing; then he "seized" the car a little bit to get across, and then looked up north to see if there was anything on the west track, and we didn't see anything, and when we looked again this train was about I think fifty feet ahead of us.
" 'Q. You mean to the south of you?
" 'A. Yes.
" 'Q. That is, from the crossing?
" 'A. Yes, sir. And then Mr. Morris tried to cut away from the train, and that is when the train hooked us.
" 'Q. At the time that you got up to the track and looked south, where was the front end with reference to the east rail of that track on which the train was--where was the front end of the engine?
" 'A. You mean the engine of the automobile?
" 'Q. Yes, how close up to the rail was it?
" 'A. I reckon a foot or two.
" 'Q. At what speed do you think the automobile was going at that time?
" 'A. Five or six miles an hour.
" 'Q. You stated when you came up to the east side of the street, you slowed down?
" 'A. Yes, sir, he came almost to a stop.
" 'Q. Can you give the jury any idea what the speed was he slowed down to at that time?
" 'A. I reckon to two or three miles; he came to almost a stop.
" 'Q. Was that the time you both looked?
" 'A. Yes, sir, absolutely.
" 'Q. When he saw the train coming about fifty feet away, and his engine was within a foot of the east rail, you were going five or six miles an hour?
" 'A. Yes, sir.
" 'Q. What did the driver do then?
" 'A. He tried to get down the track--he pulled to the right.
" 'Q. When you looked--when the automobile was going about two miles an hour-- about how far south did your vision extend?
" 'A. About four hundred and fifty feet.'
"He further testified that the engineer gave no signals of the approach of the train, but on cross examination admitted that all he could say was that he heard no bell or other signal.
"The testimony shows that before reaching a point opposite the east curb of the sidewalk, which was approximately fifty-five feet from the east rail of the northbound track of the defendant, none of the occupants of the car looked or listened for the approach of the train. After coming nearly to a stop at that point the occupants of the car looked north until the car was within one foot of the east rail of the northbound track and failed to look south again until too late to avoid the accident. At this point the driver of the car made an effort to turn the car1 in the direction in which the train was coming, and as he did so the collision occurred. The headlight of the engine was burning. At the place where the automobile nearly stopped and its occupants looked south for the first and only time until immediately prior to the accident, the view of the southbound track extended 450 feet south along the track from the crossing. The railroad track south of the crossing was straight and level for an indefinite distance--as far as the eye could see. A point in the highway from the corner of the first building on the south of the highway projected to the center of the highway to the east rail of the northbound track, is 62 feet. The line of vision from this point looking south on the northbound track extends for 190 feet, south of the crossing. From a point in the center of England Street (the Charlottesville Highway) 58 feet east of the east rail of the northbound track the line of vision extends southwardly along the northbound track to a point 494 feet south of the crossing. At a point in the highway 48 feet from the east rail of the northbound track the line of vision south measured along the track is 700 feet. At a point 39 or 40 feet from the east rail of the northbound track the line of vision south of the crossing along the northbound track becomes indefinite. One can see as far as the eye can reach.
"Johnson stated that he could not estimate the speed of the train, but F. P. Moroney stated that the speed of the train was between 40 and 45 miles an hour. This statement is based upon the sole fact that when the train stopped he was thrown forward in his seat. He observed nothing in regard to the movement of the train or the surrounding conditions until the train actually stopped. Moroney did not know where the car in which he was riding was placed in the train. He testified he did not hear the bell ring.
"After the collision occurred the automobile was carried in front of the pilot of the engine along the track for a distance of 233 feet, at which point the train stopped. Thetestimony showed that the shortest distance within which a train travelling from IS to 20 miles an hour with its brakes in good condition and applied in emergency could be stopped was 200 feet. This was testified to by C. Gibson Saunders, engineman. At the time of the accident it was dark but clear.
"There were only two eye witnesses to the accident who testified in this case, the first, Lonzi Johnson, and the second C. Gibson Saunders, the defendant's engineman. Saunders had been a locomotive engineer in the employment of the defendant for a period of 27 years. He had been operating passenger trains between Richmond and Washington for a period of about five years. On the day of the accident his train left Richmond at four o'clock. The regular running time to Ashland was 21 minutes. On the morning of the accident it took him 22 or 23 minutes to make the run. He said that on approaching the Ashland station about 4:22 in the morning, when the front of his engine was about 25 feet from the crossing he saw an automobile come from behind the bank building on the south of the Charlottesville Highway and east of the crossing, running at a speed of about 40 miles an hour. He saw immediately that the automobile was not going to stop at the crossing and he instantly applied his brake in emergency. As he did so the accident happened. The speed of the train was between 18 and 20 miles an hour, and the headlight, which was in first class condition, was burning brightly and had been burning from the time the train left Richmond. At the time of the accident the engine bell was ringing, and had been ringing...
