Norfolk Southern Ry. Co. v. Lassiter

• Decision Date: 21 January 1952
• Docket Number: No. 3929,3929
• Citation: 68 S.E.2d 641,193 Va. 360
• Court: Virginia Supreme Court
• Parties: NORFOLK SOUTHERN RAILWAY CO. v. LOUISE LASSITER, ADMINISTRATRIX OF THE ESTATE OF ROBERT LASSITER, DECEASED, ETC., ET AL. Record

Page 641

68 S.E.2d 641

193 Va. 360

NORFOLK SOUTHERN RAILWAY CO. v. LOUISE LASSITER, ADMINISTRATRIX OF THE ESTATE OF ROBERT LASSITER, DECEASED, ETC., ET AL.

Record No. 3929.

Supreme Court of Appeals of Virginia

January 21, 1952.

James G. Martin & Sons, for the plaintiff in error.

Rixey & Rixey, for the defendants in error.

JUDGE: BUCHANAN

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

The appellee suggests that this appeal should be dismissed for failure of appellant's opening brief to give a fair statement of the facts pursuant to Rule 5:12, § 1(c), which requires 'A clear and concise statement of the facts, with references to the pages of the printed record when there is any possibility that the other side may question the statement. ' In Hall v. Hall, 181 Va. 67, 70, 23 S.E. (2d) 810, 811, a warning was given that failure to comply with this rule might result in denial or dismissal of the appeal or writ of error. While appellant's brief is not remarkable for compliance with the rule, its transgression is not serious enough to warrant a dismissal.

Robert Lassiter died as a result of injuries received when a tractor-trailer driven by him was struck by one of defendant's trains on a grade crossing in Norfolk county. The accident happened about 4:25 p.m., April 5, 1949. The train, which consisted of a Diesel locomotive and three cars, was running north. Lassiter was driving west on the public highway which crossed the railroad approximately at right angles. The locomotive struck the tractor or truck as its front wheels were about the middle of the rails, knocking the motor out of the truck and about 100 feet from the point of impact. Lassiter's administratrix recovered a verdict and judgment against the defendant railway company for $10,000 for causing his death.

The evidence was conflicting as to whether crossing signals were given as the train approached the crossing. However, there was positive evidence for the plaintiff that no whistle was blown or bell rung, and the verdict concluded that question against the defendant.

The court instructed the jury that Lassiter was himself guilty of negligence, but that if the defendant failed to give the signals required by section 3958, Code, 1942 (Michie), (§ 56-414 of the 1950 Code), and such failure proximately caused or contributed to the accident, then section 3959 (§ 56-416 of the 1950 Code) applied, and Lassiter's negligence would not bar recovery but should be considered in mitigation of damages. The assignments of error challenge this ruling and also assert that Lassiter's negligence was the sole proximate cause of the accident.

The defendant contends that since the locomotive pulling this train was a Diesel locomotive, not having a steam whistle, the statutes in question did not apply, hence the statutory rule of comparative negligence could not be invoked, and Lassiter's negligence was a complete bar to recovery.

Section 56-414 provides: 'Every railroad company, whose line is operated by steam, shall provide each locomotive engine passing upon its road with a bell of ordinary size and steam whistle,' and that outside of incorporated cities and towns, the whistle shall be sharply sounded at least twice at not less than 300 yards nor more than 600 yards from the crossing, and that the bell shall be rung or the whistle sounded continuously or alternately until the engine has reached the crossing.

While we have not expressly held that this statute applies to a Diesel locomotive, we have recently decided two cases which proceeded on the assumption that it did apply, no point being raised in this court about it.

In Butler v. Darden, 189 Va. 459, 53 S.E. (2d) 146, the plaintiff based her right to recover on the failure of the railway company to give the signals required by statute. The train there consisted of a Diesel locomotive and nine cars. The railway company contended on the trial that section 56-414 did not apply. The trial court held it did and it was not contended otherwise in this court. We held it to be established by the evidence that the statutory signals were given.

In Atlantic Coast Line R. Co. v. Bowen, 192 Va. 162, 63 S.E. (2d) 804, the train involved in the collision consisted of a Diesel locomotive and freight cars. There it was said: 'The testimony disclosed and it is uncontradicted that as the train approached the crossing, its whistle and bell were sounded in compliance with the statutory requirement. (Section 56-414, Code, 1950). ' 192 Va. at p. 165, 63 S.E. (2d) at p. 805.

Also, in Atlantic Coast Line R. Co. v. Clements, 184 Va. 656, 36 S.E. (2d) 553, the train involved consisted of a Diesel locomotive and 65 loaded freight cars. We said there that the crossing being within the corporate limits of a town, 'the railroad company was not required to give the crossing signals required by Virginia Code, 1942 (Michie) sections 3958 and 3959.' 184 Va. at p. 665, 36 S.E. (2d) at p. 557.

Defendant contends that the question was decided in Franklin, etc., R. Co. v. Shoemaker, 156 Va. 619, 159 S.E. 100. What was decided there was that section 3958, now 56-414, did not apply to the gasoline power car involved in that collision, which the opinion described as being 'nothing more than a motor bus fitted for railway traffic,' built on a Kelly-Springfield chassis, with a 75-horsepower motor, equipped with air and hand brakes, having within itself space for passengers, baggage, mail and express. It was there said that 'Because the statute applies to trains that pass over a given road, it does not follow that every medium of transportation there used comes within its purview. Both the motive power and the character of the tractor ought to be considered. * * * The legislature must have intended that a certain standard of efficiency be observed; they must be such as to given adequate warning when the crossing is yet 600 yards distant, and while not perfectly clear we think that such a requirement should not reasonably be imposed on cars like that in judgment. Its horsepower is not greater than that of an ordinary automobile and for all practical purposes was operated as an automobile is. It does not fall within the letter of the statute and those reasons which would bring it within its spirit are not compelling.' 156 Va. at pp. 629-30, 159 S.E. at p. 104.

While there are expressions arguendo in that case which lend support to defendant's contention, the holding does not decide the question here, and the opinion was careful to say: 'What has been said with reference to these statutes and to their application must be read in connection with the particular facts in this case and would not necessarily be authority when we come to consider other facts materially different from those here.' 156 Va. at p. 634, 159 S.E. at p. 105.

The purpose for which a statute is enacted is of primary importance in its interpretation or construction. 'A statute often speaks as plainly by inference, and by means of the purpose that underlies it, as in any other manner. A policy that is clearly implied is as effective as that which is expressed. * * * The statute should have a rational construction consistent with its manifest purpose, and not one which will substantially defeat its object. A case not within the letter of a statute may be held to be within its meaning, because it is within the mischief for which a remedy is provided. ' Leitner v. Citizens Cas. Co., 135 N.J.L. 608, 52 A. (2d) 687, 690, 171 A.L.R. 546, 549.

The purpose of section 56-414 is plain. It has the same purpose as that stated in the original enactment, Acts 1893-4, ch. 737, p. 827, 'to protect human life.'

Section 3959 (§ 56-416, Code, 1950) was added by the revisors in 1919 because, as stated in their note, injuries and deaths at grade crossings were becoming so numerous, and the object of the new statute was to require, for the safety of travelers, 'a more rigid compliance' with section 3958.

This new section 3959 provided: 'If the employees in charge of any railroad engine or train fail to give the signals required by law on approaching a grade crossing of a public highway,' the negligence of the traveler shall not bar recovery, but shall reduce damages. (Italics added).

In Norfolk, etc., R. Co. v. White, 158 Va. 243, 163 S.E. 530, the railway company contended that the phrase 'the signals required by law' referred only to those required by section 3958 and did not include a city ordinance. We held to the contrary, stating in the opinion that in construing a statute the primary quest is to find the intention of the legislature, and that it was perfectly manifest that what the legislature meant to do was 'to provide for the safety of those using the highways,' and that we ought not to 'brush aside and by our judgment render nugatory this most salutary purpose and intent because foresooth the statutes contain words which might be said to be inartificial and susceptible of such technical construction, which if adopted would defeat the legislative intent.' 158 Va. at pp. 251-52, 163 S.E. at p. 533.

Looking to the wording of the statutes involved we find that 'Every railroad company, whose line is operated by steam, shall provide each locomotive engine passing upon its road,' with bell and 'steam whistle.' (Italics added). The evidence shows that this railroad company's line is operated by steam as well as by Diesel locomotives. In view of the purpose of the statute, we are not required to say that its language applies only to a railroad whose line is operated exclusively by steam and only to each steam locomotive engine passing upon its road. The italicized words are not in the statute. The whistle prescribed is a 'steam whistle,' it is true; but what sort of 'steam whistle'? The statute does not say, but directs that it be sounded not more than 600 yards nor less than 300 yards away from the crossing. Nobody would contend that a steam whistle which could not be heard more...