Norfolk & W. Ry. Co. v. Mace

• Decision Date: 15 November 1928
• Citation: 151 Va. 458
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY v. JOHN J. MACE, ADMINISTRATOR, ETC.
• Court: Virginia Supreme Court

Page 458

151 Va. 458

NORFOLK AND WESTERN RAILWAY COMPANY v. JOHN J. MACE, ADMINISTRATOR, ETC.

Supreme Court of Virginia, Richmond.

November 15, 1928.

Absent, Chichester, J.

1. CROSSINGS — Signals — Causal Connection between Failure to Give Signals and Accident. — Whenever signals of approach are not given at a crossing and there is an accident, a recovery may be had unless it affirmatively appears from the evidence or from the physical facts that there was no causal connection between them. This is now settled law in this State.

2. CROSSINGS — Two Distinct Acts of Negligence Chargel — Improper Instructions as Either Act of Negligence as Ground for New Trial — Case at Bar. — In the instant case, an action arising out of an accident at a crossing, plaintiff relied upon two acts of negligence by defendant, first, the failure to give the statutory crossing signals, and second, the failure of the defendant to take proper steps to avoid the accident after plaintiff's peril was discovered. Those two theories were relied upon by the plaintiff for recovery. There was a verdict for the plaintiff.

Held: That if the jury were improperly instructed as to either theory, such error would be prejudicial to the defendant, for the court could not say upon which theory the verdict stood.

3. RAILROADS — Crossings — Negligence — Railroad must Exercise Ordinary Care. — Ordinary care at a crossing is all that the law demands of a railroad unless the situation is one of imminent peril.

4. NEGLIGENCE — Ordinary Care — Definition — Relative Significance. — The terms "ordinary care" and "reasonable prudence" have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence.

5. NEGLIGENCE — Ordinary Care — Questions of Law and Fact. — The policy of the law has relegated the determination of ordinary care to the jury, under proper instructions from the court.

6. CROSSINGS — Ordinary Care — Dangerous Crossing — Instruction that Extra Care should be Used — Case at Bar. — The instant case was an action arising out of a collision at a crossing between the truck of plaintiff's intestate and defendant's train. The crossing where the accident occurred was a dangerous one, and the court instructed the jury that if they believed that the approach to the crossing was extra dangerous, then it was the duty of the defendant to exercise extra care to protect travelers.

Held: No error, as the instruction amounted to no more than a statement to the effect that extra vigilance in such circumstances was but ordinary care.

7. CROSSINGS — Negligence — Degree of Care Required of Railroad. — Independent of antecedent negligence, a high degree of care and diligence is required of a railroad at a crossing when plaintiff's peril is patent and imminent, but this does not mean that impossible perfection is to be expected.

8. NEGLIGENCE — Sudden Emergency — Care to be Exercised in Sudden Emergency. — Where a person, without fault on his part, is placed in sudden peril or sudden emergency, he is required to exercise such ordinary care as a person of ordinary care and prudence would be expected to exercise if confronted with the same sudden emergency or peril.

9. NEGLIGENCE — Sudden Emergency — Care to be Exercised in Sudden Emergency. — Where placed in sudden emergency or sudden peril an ordinary man cannot be expected to do any particular thing. He might do one of many things. The most that can be said is that whatever was done should manifest a fair degree of reason in his efforts to avoid an accident.

10. CROSSINGS — Care to be Exercised in Sudden Emergency — Application of Emergency Brakes by Engineer — Last Clear Chance — Case at Bar. — The instant case arose out of a crossing accident. The engineer of the front engine of the train on seeing the danger of plaintiff's intestate applied the emergency brake and sanded the track. Another man of as good or better judgment might have sounded the alarm, but it was not possible for the engineer to have done all these things.

Held: That the engineer exercised ordinary care, and that his conduct would not have warranted an instruction that it was the duty of the servants of the railroad to use all the means in their power to do everything that could be reasonably done, under the circumstances, to avoid the mischief complained of, as such instruction would not have been sustained by the evidence.

11. CROSSINGS — Accident at Crossing — Double Engine Train — Lookout — Duty of Second Engineer. — It is the duty of the engineer of the second engine of a double engine train to keep a lookout, and where he knew that the train was approaching a dangerous crossing, it was his duty to so place himself as to make that lookout effective.

12. CROSSINGS — Accident at Crossing — Double Engine Train — Duty of Second Engineer — Last Clear Chance. — The instant case arose out of an accident at a crossing. The train that struck the truck of plaintiff's intestate had two engines. The engineer of the second engine was not in charge of the train. It was not his duty to apply the brakes, and there was nothing left for him to do except to sound the alarm. He did nothing.

Held: That the lack of action of this second engineer justified an instruction that it was the duty of the servants of the railroad to use all the means in their power to do everything that could be reasonably done, under the circumstances, to avoid the mischief complained of.

13. NEGLIGENCE — Last Clear Chance — Burden of Proof Upon Plaintiff to Show that Defendant had Last Clear Chance to Avoid Accident — Whether Plaintiff's Intestate has Sustained Burden for Jury. — The burden is undoubtedly upon the plaintiff to prove that the defendant had a clear chance to avoid the accident. It is the court's duty to so instruct. The chance must be clear, but after they have been instructed, it is for the jury, within certain well recognized limits, to say if the evidence measures up to the necessary requirements.

14. CROSSINGS — Accident at Crossing — Last Clear Chance — Sounding Warning — Case at Bar. — The instant case arose out of an accident at a crossing. There was a verdict for plaintiff which was approved by the trial judge. The court instructed the jury that it was the duty of the servants of the railroad to use all the means in their power to do everything that could be reasonably done, under the circumstances, to avoid the mischief complained of. The train had two engines. The engineer of the first engine applied his brakes and sanded the track. The engineer of the second engine did nothing. No warning signals were given. It could not be said from the evidence that the driver of the truck, had he been promptly apprised of his peril, could not have stopped, and that he did not have a still fairer chance to turn aside, as the road was amply wide.

Held: That, under these circumstances, the instruction was sufficiently supported by the evidence.

15. APPEAL AND ERROR — Crossing Accident — Failure of Pleadings of Plaintiff's Intestate to Charge Negligence of Engineer of Second Engine of Train could not be Taken Advantage of for the First Time on Appeal. — The instant case, which arose out of a crossing accident, defendant contended that there was nothing in the pleadings which charged the engineer of the second engine of the train which struck the truck of plaintiff's intestate with negligence. It was true that from the motion and from the bill of particulars one would infer that there was only one engine, but evidence that there were two and evidence as to the rights, duties and conduct of each crew was heard without objection. Had any been made, amendments to conform the pleadings to the facts would doubtless have been permitted.

Held: That it was too late for the first time to raise this question on appeal.

16. CROSSINGS — Negligence of Defendant Railroad — Evidence Sufficient to Support Verdict for Plaintiff — Case at Bar. — The instant case was an action for the death of plaintiff's intestate in a crossing accident. The train was a double header, and there was evidence sufficient to sustain a finding that the engineer of the second engine was negligent, in that on perceiving the peril of plaintiff's intestate he took no steps whatever to avoid the accident. There was also evidence to sustain a finding that the statutory signals of approach were not given.

Held: That the evidence was sufficient to sustain a verdict for plaintiff.

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

The opinion states the case.

Kerr & Churchman, for the plaintiff in error.

Curry & Carter and Taylor & Taylor, for the defendant in error.

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

This is an action by motion brought to recover damages arising out of the death of Theodore Mace in a crossing accident at Harriston, Augusta county, Virginia, October 17, 1927.

Designating the parties as they were designated in the trial court, plaintiff's intestate, a boy between fourteen and fifteen years old, together with his father, was killed by the front engine of a north bound double header freight train at this crossing. What is known in the record as Payne's Run road is a county road, which, roughly speaking, runs north and south and parallels the defendant's right of way for some distance to the south. That road comes into what is known as the Black Rock road about thirty feet east of this crossing, almost at right angles, merges into that road and crosses the railway track at right angles. It descends to the point of merger on a grade of eight per cent and less from a point which at its highest is from twenty-five to thirty feet above the track. It was raining. Mace and his father were in a truck, the curtains of which were closed. They came down...