N. & W. Ry. Co. v. Wellons' Adm'R

• Decision Date: 12 September 1930
• Court: Virginia Supreme Court
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY v. SUSAN EMMA WELLONS' ADMINISTRATOR.

Page 218

155 Va. 218

NORFOLK AND WESTERN RAILWAY COMPANY v. SUSAN EMMA WELLONS' ADMINISTRATOR.

Supreme Court of Virginia, Staunton.

September 12, 1930.

Absent, Campbell and Epes, JJ.

1. CROSSINGS — Gongs and Gates — Traveler must still Exercise Ordinary Care. — Neither gongs nor gates relieve a traveler from the exercise of ordinary care and caution.

2. CROSSINGS — Contributory Negligence — Driving on Track in Front of Approaching Train. — To drive in front of an oncoming train on level land and in plain view in the face of bell and whistle is unquestioned negligence and would prevent a recovery though it be manifest that the railway was likewise clearly negligent.

3. CROSSINGS — Substitution of One Set of Signals for Another — Notice of the Substitution — Case at Bar. — In the instant case, an action for death at a crossing, the railroad had been ordered by the Corporation Commission to put gates at the crossing. This they had done. But about six weeks before the accident the railroad, without permission of the Commission, substituted another set of signals for the gate and watchman. No public notice of the substitution was given by the railroad, but the decedent and her companion must have been fully aware of it for they lived near the crossing and used it almost every day. The new signals had been in use for more than a month before the accident though the use of the gates had been continued up to a few days preceding the accident.

Held: That the decedent and her companion must have had knowledge of the discontinuance of the gates.

4. CROSSINGS — Gongs and Gates — Contributory Negligence — Driving on Track in Front of Approaching Train — Causal Connection between Negligence of the Railroad and Accident — Case at Bar. — The instant case was an action for the death of plaintiff's intestate at a crossing. The driver of the car in which plaintiff's intestate was riding saw the approaching train, or should have seen it in the exercise of any sort of care, and so he was guilty of contributory negligence. The fact that the gates were up did not contribute to the disaster. The gates down would have been nothing but a signal to him to stop. The approach of this express train, itself, was a still more imperative warning to him to do so, and so in such circumstances there was no causal connection between the negligence of the railroad and the accident to the chauffeur. The fact that the gates were up did not "justify" him in going on.

5. AUTOMOBILES — Imputable Negligence. — The negligence of a chauffeur is not to be imputed to his passenger or guest. Negligence to be charged against the guest or passenger must be his own.

6. CROSSINGS — Negligence — Proximate and Remote Cause — Causal Connection between Negligence of Railroad and Injury to Plaintiff. — In order for a plaintiff to recover against a railroad for injuries received in a crossing accident it is necessary for him to prove, first, that the defendant was negligent, and, second, that this negligence contributed to the hurt. There must have been some causal connection between the negligence of the defendant and the injuries suffered by the plaintiff. A plaintiff can only recover compensation for such damages as negligence occasioned.

7. CROSSINGS — Negligence — Allowing Gates to Stand Open — Case at Bar. — In the instant case, an action for death of plaintiff's intestate in a crossing accident, the railway was negligent. It ceased to maintain, without the consent of the Corporation Commission, gates established by its order, and permitted them to stand open, which in itself was an invitation to the traveling public.

8. AUTOMOBILES — Imputable Negligence — Care to be Exercised by Guest. — It is the duty of a guest riding on the front seat with the driver of an automobile to take ordinary precautions for her own protection. What precautions are ordinarily to be expected vary with the situation. If she knew of the crossing and its constant use, more was to be required of her than of a stranger to the locality.

9. AUTOMOBILES — Imputable Negligence — Care to be Exercised by Guest. — The guest should not undertake to drive and may trust the driver until it becomes plain that such trust is misplaced. But she may not place her safety entirely in the keeping of the driver but must exercise due and reasonable care for her own protection and safety.

10. AUTOMOBILES — Imputable Negligence — Care to be Exercised by Guest when about to Cross Railroad Track. — It is the duty of one who is riding in an automobile as a passenger, when about to cross a railroad track, to look and listen for approaching trains, and to warn the chauffeur of the near approach of a train, and prevent him from attempting to cross the tracks close in front of the train, and a failure to perform his duty amounts to negligence.

11. AUTOMOBILES — Imputable Negligence — Care to be Exercised by Guest — Warning to Driver when about to Cross Railroad in Front of Approaching Train — Case at Bar. — In the instant case, an action for death of plaintiff's intestate in a crossing accident, decedent was riding on the front seat with the driver and had a full and unobstructed view of the track on both sides of the crossing. A fast train was approaching giving the statutory signals, although the gates required by the Corporation Commission were open, the railroad having substituted another signal without the permission of the Commission. Plaintiff's decedent was familiar with the locality and must have known of this substitution. There was no evidence that plaintiff's intestate gave any warning to the driver. On the contrary, eyewitnesses testified to no act of the driver tending to show that he had been given any warning.

Held: That the contributory negligence of plaintiff's intestate in failing to warn the driver precluded recovery.

12. CROSSINGS — Negligence — Proximate and Remote Cause — Death of Guest in Automobile — Warning by Guest to Driver — Case at Bar. — In the instant case, an action for death of plaintiff's intestate in a crossing accident, decedent was riding on the front seat with the driver and had a full and unobstructed view of the track on both sides of the crossing. There was no evidence that plaintiff's intestate gave the driver any warning of the approaching train. If she did warn the driver, then he had positive knowledge of the situation and his failure to stop or to attempt to stop was due to no negligence of the railroad. Its negligence consisted in having the gate open, but an open gate was no invitation to the driver to attempt to beat the train to the crossing. His negligence was the sole present proximate cause of the accident and superseded the remote negligence of the railway. There was no causal connection between the negligence of the railroad and the accident. The fact that the gates were up in nowise contributed to the accident.

13. APPEAL AND ERROR — Weight to be Given Verdict — Verdict must be Supported by the Evidence. — It is the duty of the Supreme Court of Appeals to support a verdict when possible, while it, in turn, must be supported by the evidence.

Error to a judgment of the Circuit Court of Norfolk county. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

R. M. Hughes, Jr. and W. Moncure Gravatt, for the plaintiff in error.

James G. Martin and Tom E. Gilman, for the defendant in error.

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

The Norfolk and Western, a double track railway, runs east and west through Norfolk county. Crossing it at right angles is the George Washington highway, a paved and much traveled road. Where they intersect, the country is level. The railway and the highway are both straight and, with the exception of some telegraph poles, the view from one road to the other was absolutely unobstructed. Shortly after 11 o'clock on the morning of April 24, 1928, Mrs. Susan Emma Wellons and her son-in-law, W. W. Forehand, in a Chevrolet truck headed south, undertook to cross the railway and were struck by a fast westbound passenger train, known as train No. 3, and instantly killed. Both Mrs. Wellons and Mr. Forehand lived near this crossing and were perfectly familiar with it.

Another fast passenger train, known as the "Cannonball," passed over this crossing going east towards Norfolk and met train No. 3 between 1,300 and 1,400 feet east of the crossing. Both of these trains ran on regular schedule, so regular that one of the plaintiff's witnesses said you could set your watch by them.

Several years preceding the accident, the State Corporation Commission ordered the railway to put gates at this crossing. It did so and they were regularly operated. About six weeks before the accident the railway, without permission from the Corporation Commission, put there a "wig-wag" signal and an electric gong, which it proposed to substitute for the gate and watchman. After installation they were operated in conjunction with the gates for about six weeks, but on the Saturday preceding the accident, which was on a Tuesday, the defendant company ceased to operate the gates at all, and they stood open from that time. No public notice was given of the change.

The day of the accident was sunny; there was considerable wind blowing from the southwest and smoke from the "Cannonball" which first passed, but not enough to obscure the train. J. G. Swain, a witness for the plaintiff, who saw the accident, said that the wig-wag signal was working. F. L. Willey, another witness for the plaintiff, said that this signal was working regularly, while Mrs. Shackleford said that on the preceding day she noticed that the gong did not ring until after several cars had passed the crossing. Another truck, carrying newspapers, traveling north, crossed the track just after the "Cannonball" and just ahead of train No. 3. The situation was then so dangerous that Swain having in mind the Ledger Dispatch truck, said to himself: "He is crazy...