Mize v. Gardner Motor Co.

• Decision Date: 11 June 1936
• Citation: 166 Va. 415
• Parties: ESSIE K. MIZE, ADMINISTRATRIX, ETC. v. GARDNER MOTOR COMPANY AND SOUTHERN RAILWAY COMPANY.
• Court: Virginia Supreme Court

Page 415

166 Va. 415

ESSIE K. MIZE, ADMINISTRATRIX, ETC. v. GARDNER MOTOR COMPANY AND SOUTHERN RAILWAY COMPANY.

Supreme Court of Virginia, Wytheville.

June 11, 1936.

Present, Holt, Hudgins, Gregory, Chinn and Eggleston, JJ.

1. CROSSINGS — Contributory Negligence — Care to Be Exercised by Guest in Automobile. — A passenger in an automobile when approaching a railroad crossing must look and listen for approaching trains and warn the driver of the near approach of a train, but the guest should not undertake to drive and may trust the driver until it becomes plain that such trust is misplaced.

2. AUTOMOBILES — Guest — Duty to Control and Direct Driver. — Ordinarily a passenger in an automobile has no duty to direct and control the driver unless it is obvious that the driver is taking no precautions for their safety.

3. CROSSINGS — Contributory Negligence — Guest in Automobile — Burden of Proof — Case at Bar. — In the instant case, an action for wrongful death, plaintiff's intestate was killed when an automobile, owned by defendant motor company, and in which decedent was riding as a passenger, was struck by a train at a railroad crossing.

Held: That the burden of proving that plaintiff's intestate failed to look and listen for the train and to warn the driver of its approach was upon the defendants.

4. NEGLIGENCE — Presumptions and Burden of Proof. — Negligence, whether primary, contributory or concurring is never presumed from the happening of an accident. There is a presumption against negligence, and it must always be affirmatively proven.

5. CROSSINGS — Questions of Law and Fact — Contributory Negligence of Guest in Automobile — Case at Bar. — In the instant case, an action for wrongful death, plaintiff's intestate, while a passenger in an automobile owned by one of the defendants and driven by a salesman, was killed when the automobile was driven at a slow rate of speed, but without stopping, on the tracks at a railroad crossing where it was struck by a train which was approaching at high speed in plain view but without giving the statutory signals.

Held: That whether plaintiff's intestate was negligent in failing to look and listen for the train and to warn the driver of its approach was a question for the jury.

Error to a judgment of the Corporation Court of the city of Danville. Judgment for defendants. Plaintiff assigns error.

The opinion states the case.

Meade, Meade & Talbott, for the plaintiff in error.

Barksdale & Abbot, Harris, Harvey & Brown, A. Lynch Ward, Jr., and Thomas B. Gay, for the defendants in error.

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

The plaintiff in error as administratrix of the estate of George Talmadge Mize, deceased, brought an action at law against the partners of the Gardner Motor Company and the Southern Railway Company to recover damages for the death of Mize, who was riding as a passenger in an automobile belonging to the Gardner Motor Company and being driven by its agent, Turner, when he was killed by a passenger train of the Southern Railway Company at a grade crossing in the village of Schoolfield, just a short distance from the city of Danville. The jury rendered a verdict in favor of the administratrix against both defendants for the sum of $9,214.00. The trial court set the verdict aside and entered final judgment in favor of both defendants on the ground that Mize was guilty of contributory negligence as a matter of law which barred any recovery for his death.

The Southern Railway Company maintains its double track railroad through the village of Schoolfield. These tracks at the Stuart avenue crossing run practically east and west. The Riverside and Dan River Cotton Mills, Incorporated, is located to the north of the tracks, while a considerable portion of the residential section of the village lies to the south of the tracks. Stuart avenue is a street in the village which was constructed and is owned and maintained by the cotton mills corporation and it crosses the double tracks of the Southern Railroad at practically right angles. On the northern side of the right-of-way of the railway company is located State highway number 29, which parallels the tracks for a distance of something like 1,000 feet both east and west from Stuart avenue. The crossing is used by the public at large as well as the workers employed in the mill. The concrete surface of the State highway is twenty feet wide and the distance from the southern edge of the pavement to the northernmost rail of the tracks is forty-four or forty-five feet. The road leading from the pavement on and over the tracks is of rocks and cinders and is practically level with the highway. Southbound trains use the north tracks while the northbound trains use the south tracks.

The plaintiff's intestate who lived a short distance from the crossing and in sight of it, worked in the mill. He was thoroughly familiar with the crossing, having to use it every day in going to and from his work. Roy Turner, an automobile salesman, employed by the Gardner Motor Company, was negotiating with Mize for the sale and purchase of a new Plymouth car. On April 11th at about 4 o'clock, Turner went to the mills to get Mize so that the transaction might be completed. The day was clear. The car was in good mechanical condition. Mize got in the car with Turner who drove westerly along State highway number 29 towards Mize's home.

Just prior to the time that Turner drove upon the crossing a freight train had passed going north and another train known as number 46 was due to pass at the time. Train number 135 going south was due to pass in about twenty-five minutes.

Turner had proceeded up State highway number 29, just prior to reaching Stuart avenue, in a careful manner driving at twenty-five miles per hour. For most of the distance as he proceeded on State highway number 29, a train moving in the same direction in which they were going could have been seen without difficulty. At a point about 300 feet before Stuart avenue is reached, the level of the highway sinks to about nine feet below the level of the railroad tracks and this might partially obstruct the view of a train approaching from the north. When Stuart avenue was reached Turner reduced the speed of the car to fifteen miles per hour and turned left into Stuart avenue and proceeded at a slow rate of speed estimated by some of the witnesses at fifteen miles and by one eye witness at five miles per hour when the front wheels went over the tracks. At this moment the "Crescent Limited," a fast passenger train, seven hours late, running down grade at an estimated speed of from sixty to seventy miles per hour approached on the southbound track. Immediately before the train struck the car either Turner or Mize or both of them screamed. Both were killed.

During the trial of the case the plaintiff in error sought to invoke what is commonly called the comparative negligence doctrine which is embraced in section 3959 of the Code, but the trial court refused to apply that doctrine to this particular crossing because its view was that Stuart avenue is not a public highway. This ruling on the part of the court is made the basis of one of the assignments of error but from our view of the case it will not be necessary to decide this point.

The main point in the case, which will be conclusive of it, is whether or not Mize, the passenger in the automobile was guilty of contributory negligence as a matter of law which bars his recovery or whether that question was properly submitted to the jury.

If Mize was guilty to contributory negligence as a matter of law there could be no recovery against the Gardner Motor Company nor against the Southern Railway Company, unless the comparative negligence doctrine (section 3959) applies. The trial court held the view that it was a jury question and submitted it to the jury under comprehensive instructions. Later, in passing upon the motion to set aside the verdict which had been rendered for the plaintiff the court was of the view that it was not a jury question but one of law. Therefore the correct determination of whether the asserted contributory negligence of Mize was one of fact for the jury or one of law for the court will dispose of this case.

The jury by its verdict has established that both defendants in error were negligent — the railway company in failing to give the signals for the crossing and the Gardner Motor Company, through Turner, its agent, in driving upon the tracks immediately in front of the fast approaching train; that such negligence was the proximate cause of the accident and that Mize was not guilty of contributory negligence. It is not argued that the negligence of these defendants in error has not been established nor do they now seek to escape liability upon the ground that they were not negligent. Their entire effort here is to fasten contributory negligence upon Mize as a matter of law.

There is a difference in the degree of care required of a passenger in a car from that required of the driver when approaching a railroad crossing. Under certain circumstances the driver may be negligent in going on a crossing while his passenger may be free from negligence, but we cannot conceive circumstances under which the passenger could be guilty of negligence in being driven over the crossing without negligence on the part of the driver. This indicates a difference in the care required of each.

The duty of a passenger in a car which is about to be driven over a railroad crossing is clearly defined in the cases of Hancock Norfolk & W. Ry. Co., 149 Va. 829, 141 S.E. 849, and Norfolk & W. Ry Co. Wellons' Adm'r, 155 Va. 218, 154 S.E. 575, 578. The rule is that a passenger must look and listen for approaching trains and warn the driver of the near approach of a train. But in the Wellons Case, supra, we said that "the guest should not undertake to drive and may trust the driver until it becomes plain that such...