N. & W. Ry. Co. v. White

Decision Date17 September 1931
CourtVirginia Supreme Court
PartiesNORFOLK AND WESTERN RAILWAY COMPANY v. JOHN THOMAS WHITE.

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

1. CROSSINGS — Statutory Signals — Whether Section 3959 of the Code of 1919 Applies to City Ordinance Requiring Signals — Case at Bar. The instant case was an action for personal injuries sustained in a crossing accident. There was a judgment for plaintiff and defendant railroad assigned as error the action of the court in refusing to set aside the verdict and enter judgment for the defendant, and in applying the mitigation rule provided under section 3959 of the Code of 1919 of Virginia rather than treating such rule as inapplicable to an ordinance of the city of Norfolk passed pursuant to statutory authority (section 3958 of the Code of 1919), providing that within the city limits when approaching a street crossing the bell of an engine shall be rung.

Held: That the court did not err in this respect and that section 3959 of the Code of 1919, on the effect of failure to give statutory signals, applied to the failure to give the signals as required by the city ordinance at street intersections.

2. STATUTES — Construction — Intention of the Legislature. — In construing a statute the primary quest is to find the intention of the enacting body.

3. CROSSINGS — Warnings — Sections 3958 and 3959 of the Code of 1919 — Object of Warning Signals. — By the enactment of sections 3958 and 3959, Code of 1919, it was manifest that what the legislature meant to do was to provide for the safety of those using the highways and ways of the State and thus to require reasonable things of railroads, the compliance with which would likewise inure to their benefit.

4. CROSSINGS — Signals — Meaning of "Law" as Used in Section 3959 of the Code of 1919, Providing for the Effect of Failure to Give the "Signals Required by Law"City Ordinance a "Law"Case at Bar. The instant case was an action for personal injuries sustained in a crossing accident. There was a judgment for plaintiff and defendant railroad assigned as error the action of the court in refusing to set aside the verdict and enter judgment for the defendant, and in applying the mitigation rule provided under section 3959 of the Code of 1919 of Virginia rather than treating such rule as inapplicable to an ordinance of the city of Norfolk passed pursuant to statutory authority (section 3958 of the Code of 1919), providing that within the city limits when approaching a street crossing the bell of an engine shall be rung. Defendant contended that a city ordinance requiring that the engine bell should be rung when approaching street intersections did not come within the words "signals required by law."

Held: That an ordinance enacted pursuant to statutory authority requiring the bell to be rung by an engine approaching a street intersection within the city did come within the meaning of the words "required by law."

5. CROSSINGS — Signals — "Effect of Failure to Give Statutory Signals" — Question of Whether Section 3959 of the Code of 1919 Applies to City Ordinances — Case at Bar. — In the instant case, which arose from a collision between plaintiff's automobile and defendant railroad's engine at a street intersection, it was urged that the title or caption of section 3959 of the Code of 1919, which is "effect of failure to give statutory signals," should be construed to exclude an ordinance as embraced within its meaning.

Held: That this contention was not sound.

6. STATUTES — Code — Headlines of the Several Sections of the Code not a Part of the Code — Code of 1919, Section 5, Sub-Section 20. — Sub-section 20 of section 5 of the Code of 1919 provides that the headlines of the several sections of the Code printed in black-face type were intended as mere catch-words and should not be deemed or taken to be titles of such sections, nor as any part of the statute.

Held: That the headline in black-face type to section 3959, "effect of failure to give statutory signals," could not be construed as excluding from the section a city ordinance requiring the ringing of the bell of an engine approaching a street intersection.

7. STREETS AND HIGHWAYS — Definition of Highway — Sections 3958 and 3959 of the Code of 1919Case at Bar. — In the instant case the defendant asked the Supreme Court of Appeals to give the term "public highway" as used in section 3959 of the Code of 1919 an application restricted to country highways or public roads traversing rural sections. But the court was of the opinion and so held that Barre street where it crosses the defendant's railroad tracks in the city of Norfolk, the place where the collision occurred between the defendant's locomotive and the bus which was being driven by the plaintiff, is a highway within the meaning or sections 3958 and 3959 of the Code of 1919.

8. CROSSINGS — Signals — Sections 3958 and 3959 of the Code of 1919 Construed Together. Sections 3958 and 3959 of the Code of 1919, as to the duty of a railroad to give crossing signals and the effect of failure to give the statutory signals, are closely interrelated and must be read and construed together and effect given to all of their provisions.

9. CROSSINGS — Failure to Give Signals — Instruction that Contributory Negligence Barred Recovery — Case at Bar. The instant case was an action by plaintiff against defendant railroad for injuries sustained in a collision between the engine of defendant and plaintiff's automobile at a street intersection. Defendant asked for an instruction peremptorily telling the jury that the plaintiff was guilty of contributory negligence which barred his recovery.

Held: That the court correctly refused the instruction, as under section 3959 of the Code of 1919 the contributory negligence of plaintiff could not bar his recovery but was only matter to be considered in mitigation of damages, where the railroad failed to give the statutory signals.

10. DAMAGES — Personal Injuries — Verdict for $6,500.00 — Case at Bar. The instant case was an action by plaintiff against a railroad for personal injuries arising out of a collision at a street intersection. The jury found a verdict for plaintiff for $6,500.00. Plaintiff lost a number of teeth. His head was cut, requiring sixteen stitches to be taken, his lower lip was cut and his right leg was lacerated. He was a patient in a hospital for over four weeks and was under the treatment of physicians for the open leg wound for over sixty days.

Held: That the amount of the verdict could not be said to be so excessive as to point to prejudice, partiality or corruption on the part of the jury.

11. DAMAGES — Mitigation of Damages under Section 3959 of the Code of 1919 — Whether Jury Considered Contributory Negligence of Plaintiff in Mitigation of Damages under Section 3959 of the Code of 1919. The instant case was an action against a railroad for personal injuries arising out of a collision at a street intersection. The jury found a verdict for plaintiff of $6,500.00 and it was assigned as error that the jury failed to mitigate the damages on account of the plaintiff's contributory negligence. Plaintiff claimed damages in the sum of $15,000.00.

Held: That no one could say that the jury did not mitigate the damages, as its verdict was for less than half of the amount claimed.

12. INSTRUCTIONS — Presumption that a Jury Heeds the Instructions. — The presumption is that a jury heeds, rather than ignores, the instructions of a court.

13. DAMAGES — Questions of Law and Fact — Mitigation of Damages under Section 3959, Code of 1919 — Amount of Damages for Jury. — The general rule is that the mitigation of damages under section 3959 of the Code of 1919 is peculiarly a question for the jury.

14. CROSSINGS — Failure to Give Signals — Contributory Negligence in Mitigation of Damages — Failure of Court to Define Mitigation of Damages — Case at Bar. — In an action for damages arising out of a collision between plaintiff's automobile and an engine of defendant railroad at a street intersection, the court instructed the jury that they must consider the plaintiff's negligence in mitigation of damages.

Held: That while the court might have given an instruction defining mitigation of damages, its failure to do so was not error.

15. VERDICT — Affidavits of Jurymen Impeaching Verdict — General Rule — Reason for Rule. — The affidavits or the testimony of jurors to impeach their own verdicts are to be received with great caution and only in exceptional cases and in order to prevent a failure of justice. The reason for the rule is that otherwise there would be held out to unsuccessful litigants and their friends the strongest temptation to tamper with jurors after their decision and might be productive of great evil.

16. VERDICT — Affidavits of Jurymen Impeaching Verdict — Affidavits by Jurors to the Effect that They Did Not Mitigate Damages for Contributory Negligence of Plaintiff where Defendant Railroad Failed to Give Crossing Signals — Case at Bar. The instant case was an action arising out of a collision between plaintiff's automobile and an engine of defendant at a street intersection. The railroad failed to give the statutory signals at the crossing. There was a verdict for plaintiff and defendant assigned as error that the jury failed to mitigate the damages on account of plaintiff's contributory negligence. Defendant supported this assignment by affidavits of six of the jury to the effect that they did not mitigate the damages and did not understand what mitigation of damages meant.

Held: That the court correctly refused to read the affidavits of the jurymen to impeach their verdict.

17. WORKMEN'S COMPENSATION ACT — Award as Bar to Action Against Third Party — Sufficiency of Evidence of...

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