Mize v. Gardner Motor Co

• Decision Date: 11 June 1936
• Citation: 186 S.E. 108
• Court: Virginia Supreme Court
• Parties: MIZE. v. GARDNER MOTOR CO. et al.

186 S.E. 108

MIZE.

v.GARDNER MOTOR CO. et al.

Supreme Court of Appeals of Virginia.

June 11, 1936.

Error to Corporation Court of Danville.

Action by Essie K. Mize, administratrix of the estate of George Talmadge Mize, deceased, against the Gardner Motor Company and the Southern Railway Company. Judgment for defendants, and plaintiff brings error.

Reversed, with instructions.

Argued before HOLT, HUDGINS, GREGORY, CHINN, and EGGLESTON, JJ.

Meade, Meade & Talbott, of Danville, for plaintiff in error.

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

GREGORY, Justice.

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 School-field, 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. 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 & 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 No. 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 20 feet wide, and the distance from the southern edge of the pavement to the northernmost rail of the tracks is 44 or 45 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 No. 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 No. 46 was due to pass at the time. Train No. 135 going south was due to pass in about twenty-five minutes.

Turner had proceeded up state highway No. 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 No. 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 9 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 eyewitness 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 downgrade 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 of 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 v. Norfolk & W. Ry. Co., 149 Va. 829, 141 S.E. 849, and Norfolk & W. Ry. Co. v. 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 trust is misplaced."

The difference in the duty of a passenger and that of a driver arises by reason of the fact that the driver has physical control of the car. Ordinarily the passenger has no duty to direct and control the driver unless it is obvious that the driver is taking no precautions for their safety. If there is no apparent danger in the manner in which the driver is operating the car, the passenger is not required to interfere.

The quotation made by Judge Prentis in Director General v. Lucas, 130 Va. 212, 107 S.E. 675, 677, from the opinion by Burke, J., in Hedges v. Mitchell, 69 Colo. 285, 194 P. 620, is applicable here. He said:

"It is contended that some duty devolved upon plaintiff (a passenger on the rear seat of defendant's automobile) to warn and guide defendant as to his route of travel, his speed, etc., and that neglect to discharge that duty constituted such contributory negligence as to defeat recovery. If such be the law, the instructions given were ample. But a duty to give such advice implies a duty to heed it, and the rear seat driver is responsible for enough accidents as the score stands without the aid of judicial precedent. The place for a passenger who knows better than the driver of a car when, where, and how it should be operated is at the wheel."

In Norfolk & W. Ry. Co. v. Wellons' Adm'r, 155 Va. 218, 154 S.E. 575, it was held that an open gate maintained by the company at a grade crossing was remotenegligence and not an invitation to the driver to attempt to beat the train to the crossing. The driver's negligence was the sole present proximate cause of the accident and superseded the remote negligence of the railway. The statutory bell and whistle signals were given. The driver of the truck...