Marks' Adm'r v. Petersburg R. Co

• Decision Date: 11 June 1891
• Citation: 88 Va. 1,13 S.E. 299
• Parties: Marks' Adm'r v. Petersburg R. Co.
• Court: Virginia Supreme Court

13 S.E. 299

88 Va. 1

Marks' Adm'r

v.Petersburg R. Co.

Supreme Court of Appeals of Virginia.

June 11, 1891.

Railroad Companies — Accident at Crossing— Contributory Negligence.

1. A person who, after standing near a railroad crossing, towards which a train has commenced to back in obedience to the signal of a brakeman in full view from where she stood, attempts to cross the track when the train is but seven feet from, and moving towards, her is guilty of contributory negligence_; and cannot recover for the injuries she receives, though the railroad company is guilty of negligence in backing the train.

2. The fact that such person is blind in one eye will not excuse her, but only imposes the duty of a higher degree of care to avoid danger.

Error to judgment of the hustings court or the city of Petersburg, rendered on the 15th of November, 1889, in an action of trespass on the case, wherein W. R. McKenney, administrator of Elmira V. Marks, deceased, was plaintiff, and the Petersburg Railroad Company was defendant. The action was brought to recover damages for the alleged negligent killing of the plaintiff's intestate by the defendant company, at the intersection of its road with Market street, in the city of Petersburg, oh the 27th of May, 1889. The deceased, a woman 53 years of age, was killed by being run over by a backing freight train, as she was crossing the railroad. There was a flagman at the crossing, but no lookout on the leading car, although an ordinance of the city provides that, "when a train of cars is moving back wards on any railroad within the corporate limits, said railroad company shall be required to keep a person on the leading car of such train to give proper warning to persons in the act of crossing the track in front of said train of cars. " The evidence was conflicting as to whether the bell on the locomotive was being rung at the time. The defendant's track extends for some distance in Washington street, which intersects Market street at the place of the accident. The latter street, at that point, is "a much-traveled street, both by vehicles and pedestrians."and much shifting of the trains is done there; there being a side track also in Washington street, and a switch on either side of Market street. The railroad, like Washington street, runs east and west, and intersects Market street at right angles. The accident occurred a short while before sundown. At the trial the defendant demurred to the evidence, and the jury conditionally assessed the damages at $5,790. The court sustained the demurrer, and gave judgment for the defendant, to which judgment the plaintiff obtained a writ of error and supersedeas from one of the judges of this court.

W. R. McKenney, for plaintiff in error.

Alexander Hamilton and R. B. Davis, tor defendant in error.

Lewis, P., (after stating the facts as above.) The principles of law which govern the ease are well settled. A railroad company, undoubtedly, is bound to exercise care to avoid a collision where its road crosses a public highway, and the greater the danger the greater is the vigilance required. It has accordingly been held in numerous cases, independently of any statute or ordinance on the subject, that, when a train is backed over a crossing in a frequented street, a lookout must be employed; that merely ringing the bell or sounding the whistle on the engine, when the train is standing near, with its rear to the crossing, is not sufficient warning to passers-by of an intention to back the train, and that without other notice the company will be negligent. The rights and duties, however, of the company and of the public are reciprocal, and hence no greater degree of care is required of the one than of the other. Both the company and the traveler on the highway are charged with the mutual duty of keeping a careful lookout for danger, and the degree of diligence required is such as a prudent man would exercise, under the circumstances of the case, in endeavoring to fairly perform his duty. The traveler on the highway, when he approaches a crossing, must assume that there is danger, and act accordingly. The existence of the track Is a warning of danger. He must therefore be vigilant. He must look and listen. He has no right to close his eyes and ears to the danger he is liable to incur; and if he does, and injury results, he must bear the consequences of his folly or carelessness, in such a case he is the author of his own misfortune. Beach, Contrib. Neg. § 65; Improvement Co. v. Stead, 95 U. S. 161; Nash v. Railroad Co., 82 Va. 55; Railroad Co. v. Burge, 84 Va. 63, 4 S. E. Rep. 21; 4 Amer. & Ens. Enc. Law, 68, and cases cited. In Railroad Co. v. Kellam's Adm'r, 83 Va. 851, 3 S. E. Rep. 703, where the subject is considered, it was held that a traveler on an intersecting highway, before crossing the railroad, must use his senses of sight and hearing; that he must look in every direction that the rails run, to make sure that the crossing is safe; and that his failure to do so will, as a general rule, be deemed culpable negligence. The only exceptions to the rule have been stated to be these, viz.: (1) Where the view of the track is obstructed, and hence where the injured party, not being able to see, is obliged to. act upon his judgment at the time, —in other words, where compliance with the rule would be impracticable or unavailing; (2) where the injured person was a passenger going to or alighting from a train, and hence under an implied invitation and assurance by the company to cross the track in safety; and (3) where the direct act of some agent of the company had put the person off his guard, and induced him to cross the track without precaution. 2 Wood, Ry. Law, § 323, and cases cited. In the present case the negligence of the defendant company is conceded. There was no lookout on the leading car of the backing train, as the city ordinance in such cases requires, nor were such precautions of any kind taken as were necessary to duly warn the deceased of the approaching danger.

But the question arises, was that the cause of her death, or was she guilty of such contributory negligence as to defeat the action? For, unless the negligence of the defendant was the immediate and proximate cause of the injury, the plaintiff is not entitled to recover. Railroad Co. v. Anderson, 31 Grat. 812; Dun v. Railroad Co., 78 Va. 645. The case, viewed in the light of the rule applicable to a de murrer to evidence, is substantially as follows: A few minutes before the accident occurred the deceased passed up Washington street, going west, in the direction of Market street. When she reached the intersection of those streets, she turned to the left, (I. e., to the south,) and started to cross the street. When within four feet of the railroad crossing, she stopped on the walk-way to wait for a freight train to pass, which was moving westwardly. This train, which consisted of an engine and three box-cars, was operated by an engineer and a fireman, who were on the engine, and a brakeman, who was riding on the rear car. Just before the rear of the train reached the crossing, the brake-man jumped off the car, and ran to a switch, about 15 feet east of the crossing, to turn the switch for the train to back on the side track at that point. The train passed over the crossing, where the deceased was standing, and stopped before its rear end had gotten half-way across Market street, which is less than 60 feet wide. The switch in the mean time having been turned, the brakeman at the switch signaled the engineer to back. One of the witnesses says he turned his face in the direction of the engineer, and "hallooed to him to come back;" another says he blew his whistle for him to comeback; but both say that with his hand he also waved or beckoned him back. This was within 20 feet of the deceased. The signal was promptly obeyed, and the train moved slowly backward, but without a lookout on the leading car, as already stated. There was, however, a flagman at the crossing. The deceased meanwhile was standing on the granite walk-way, between the brakeman and the train, with an unobstructed view of both. After...