N. & W. Ry. Co. v. Eley

• Decision Date: 14 January 1932
• Citation: 157 Va. 568
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY v. W. R. ELEY.
• Court: Virginia Supreme Court

Page 568

157 Va. 568

NORFOLK AND WESTERN RAILWAY COMPANY v. W. R. ELEY.

Supreme Court of Virginia, Richmond.

January 14, 1932.

Present, Campbell, C.J., and Holt, Epes, Hudgins and Browning, JJ.

1. NEGLIGENCE — Verdict of Jury as Settling Conflict in Evidence — Comparative Negligence — Case at Bar. — In the instant case plaintiff recovered damages against a railroad company for injuries to himself and his automobile at a crossing. Plaintiff contended that the conflict in the evidence as to the negligence of the railroad company was settled by the jury's verdict in his favor. But the jury did not necessarily find that the plaintiff was without negligence. It may have believed that he was negligent and yet have found for him under the doctrine of comparative negligence.

2. CROSSINGS — Accident at Crossing — Dense Fog Prevailing — Care to be Exercised on Approaching Crossing — Case at Bar. — In the instant case, an action arising out of a crossing accident, if the fog prevailing at the time of the accident was so dense as to make it impossible to see at all, then extraordinary vigilance was required of plaintiff. He should not have undertaken to pass over a much used main line track in an impenetrable fog without first satisfying himself that he could do so with safety.

3. CROSSINGS — Care to be Exercised by Railroad — Care to be Exercised by Plaintiff Approaching Crossing — Dangerous Crossing. — The greater the danger at a particular crossing, the greater the vigilance required of both the traveler and the railroad.

4. CROSSINGS — Care to be Exercised by Traveler — Looking and Listening. — Before crossing a railroad the traveler on the public highway must use his sense of sight and hearing. He must approach the crossing carefully, and must look in every direction that the rails run to make sure that the crossing is safe; and his failure to do so will, as a general rule, be deemed negligence. Moreover, since the track is a proclamation of danger to the traveler, he must not only use his eyes and ears, looking and listening in both directions, but he must make the acts of looking and listening reasonably effective.

5. CROSSINGS — Care to be Exercised by Traveler and Railroad — Duty to Exercise Due Care Rests Upon Traveler. — The duty to exercise due care rests as imperatively upon the traveler as it does upon the railway and in applying this rule it must be remembered that trains must run upon their tracks while no such steel-bound limitation confines the traveler. One must intelligently use both eyes and ears.

6. CROSSINGS — Care to be Exercised by Traveler — Looking and Listening — Looking and Listening Must be Effectual. — It has been repeatedly held that the duty of looking and listening for approaching trains before crossing a railroad track must be discharged in a way to make looking and listening effectual.

7. CROSSINGS — Common Knowledge of Noise of Approaching Train — Case at Bar. — The instant case was an action for injuries arising out of a crossing accident. If plaintiff had been blind, the noise of this approaching train should have warned him. The night was still, his head was out of his car window to look and listen from the time when the train was probably not more than 300 or 400 feet away, and thus with his faculties alert he went towards and upon the track. It was a heavy freight train, gathering speed with its exhaust open. Common knowledge tells us of its noise.

Held: That plaintiff was guilty of negligence.

8. EVIDENCE — Incredible Evidence. — Courts cannot accept as true statements which, if made out of court, no one would believe.

9. CROSSINGS — Signals — Evidence Sufficient to Show that Signals Were Given — Case at Bar. — The instant case was an action arising out of a crossing accident. The evidence for the railroad, if believed, was ample to show that both the whistle was sounded and the bell was rung. Plaintiff testified that he approached the crossing slowly, looking and listening with care. In the light of the uncontradicted physical facts it could not be believed that plaintiff approached slowly, looking and listening with care, and that he did not apply his brakes at all until he had reached the westbound track and had turned westward to avoid striking a train standing upon that track; and that all that time he knew nothing of the approaching train, although he was alert and listening. Had he been listening at all he would have heard the train whether the bell was ringing or not.

Held: That the conclusion that plaintiff was running rapidly and that he neither looked nor listened is unavoidable.

10. CROSSINGS — Signals — Evidence — Negative Evidence. — The instant case was an action arising out of a crossing accident. Plaintiff claimed that the train failed to give the proper crossing signals. A witness living near the scene of the accident testified that he heard the train but did not hear the crossing signals.

Held: That the testimony of this witness was negative and without probative value.

11. CROSSINGS — Signals — Burden of Proof to Show Failure to Give Statutory Crossing Signals — Case at Bar. — In an action arising out of a crossing accident plaintiff alleged that the train failed to give the crossing signals. Before any recovery could be had in the case this negligence of defendant must be shown, which is but to say in another way that the burden of proof was on plaintiff to show that defendant railway failed to give the statutory crossing signals. This he has not done.

Error to a judgment of the Circuit Court of Nansemond county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

F. M. Rivinus, W. Moncure Gravatt, L. P. Holland and James H. Corbitt, for the plaintiff in error.

W. H. Venable, Holland & Lovelace and John N. Sebrell, for the defendant in error.

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

In this case the plaintiff, W. R. Eley, recovered a verdict and judgment for $1,000.00 against the defendant railway company. It rests upon injuries to himself and damages to his automobile suffered at a public crossing.

Myrtle is an inconsiderable station on the main line of the Norfolk and Western Railway, a short distance west from Suffolk. A county road, running practically north and south, crosses there this railway right of way at an angle of something like sixty-two degrees. In the southeast corner, or just south of the railroad and just east of the county road, is a small freight and passenger station. Immediately in front of it are three tracks, first the westbound, then a passing track and then the eastbound. Immediately in its rear runs a station siding.

On the night of November 7, 1926, the plaintiff, an unmarried farmer, twenty-two years old, alone in a closed Buick automobile going south on this road, was struck by a westbound freight train, made up of a heavy freight engine and about sixty cars. His automobile was carried something over 1,200 feet before the train was stopped. It was demolished. His injuries at first seemed inconsequential but it is claimed that they were in fact serious as was shown by subsequent developments.

There was a heavy fog and because of it Eley said that he stopped his car and put his head out of the window on its left hand side, the side from which the train came, to look and listen, and continued to so look and listen as he approached the crossing. He further stated that after this stop he ran slowly in second gear and at an estimated speed of about five miles an hour. In undertaking to locate the point at which he stopped he first said that it was about fifty feet from the main line and then that it was fifty or sixty feet from the station siding, which put him about ninety feet from the main line. He last said that he stopped about twenty feet from this side track, thus in substance confirming his first statement. At none of the points named was there anything to prevent him from seeing the approaching train except the fog. The track itself is straight and runs on an embankment about five feet high and is reached on a six per cent grade. The county road is not paved but this grade seems to have been covered by small rocks or cinders, making what may be described as an imperfect macadam. He himself was intimately acquainted with the situation there. It was near his home.

His evidence is that when twelve or fourteen feet from the middle or passing track he saw standing on it a freight train. To avoid collision he turned to his right along the westbound main track, then put on his brakes, stopped his car within a short distance, and undertook to reverse gears, but one of its wheels hung on a rail and in a moment he was struck. He never saw or heard the train which hit him.

Questioned as to why he continued to go forward in the fog, he said:

"Q. If it was so foggy you couldn't see it, why was it, instead of driving up on the crossing and taking the risk when you knew you couldn't see, why didn't you get out of your car and go up on the crossing to look?

"A. I have been up there lots of times and I didn't think it necessary.

"Q. But you tell the jury you couldn't see because of the fog, and knowing you couldn't see because of the fog, why didn't you stop and investigate more closely before going across?

"A. I didn't think it was necessary.

"Q. In other words, you were willing, although you knew you couldn't see because of the fog, to take your chances to go across?

"A. I didn't see anything and I didn't think there was any harm or danger from it."

The train which did the damage, a fast freight, followed from Lambert's Point and was passing at Myrtle that train which stood upon the siding. When about two miles from Myrtle it came upon a semaphore or yellow board, which was a caution signal, and went forward slowly. Next seen was a red signal, which in this case indicated that the forward train was crossing over to...