Norfolk & W. Ry. Co. v. Gilliam

Citation178 S.E.2d 499,211 Va. 542
PartiesNORFOLK AND WESTERN RAILWAY COMPANY v. Naoma B. Godsey GILLIAM. NORFOLK AND WESTERN RAILWAY COMPANY v. Lloyd McDANIEL, Administrator of the Estate of Billy Ray McDaniel, Deceased.
Decision Date18 January 1971
CourtSupreme Court of Virginia

William Rosenberger, Jr., Lynchburg, for plaintiff in error.

Paul Whitehead, Lynchburg, for defendants in error.

Before SNEAD, C. J., and I'ANSON, CARRICO, GORDON, COCHRAN and HARMAN, JJ.

HARMAN, Justice.

The decedent, Billy Ray McDaniel, an infant over fourteen, and Naoma B. Godsey Gilliam, his great grandmother, were both riding in a 1963 Ford Falcon station wagon that was struck by defendant's freight train July 5, 1965, at the Sixteenth Street grade crossing in the Town of Glasgow, Virginia. Lloyd McDaniel, Administrator of the Estate of Billy Ray McDaniel, brought an action against the Norfolk and Western Railway Company to recover damages for death by wrongful act. That action was consolidated for trial with the action of Naoma B. Godsey Gilliam for damages for personal injury.

Two consolidated trials ensued. At the first trial jury verdicts for plaintiffs were rendered. These verdicts were set aside and a new trial was awarded on defendant's motion because the jury was improperly instructed. 1 At the second trial the court held that the comparative negligence doctrine embodied in Code §§ 56-414 and 56-416 was applicable, and the jury was so instructed. Verdicts were again returned for plaintiffs and final judgments were entered on these verdicts by the trial court. We granted defendant a writ of error and Supersedeas in each case.

The collision occurred at approximately 9:40 a.m. on a clear day at a point where defendant's tracks cross Sixteenth Street in the Town of Glasgow.

Sixteenth Street is a dirt road approximately 15 feet wide that is perpendicular to defendant's track. This track was described by the witnesses as running north-south.

The Sixteenth Street crossing has a macadam surface 12.3 feet wide that extends approximately 20 feet west of the west rail and 20 feet east of the east rail. A vehicle approaching the crossing from the west would encounter a 5.5 percent grade 100 feet from the crossing. Sixty feet west of the crossing the grade is 5.6 percent and 37 feet west of the crossing the grade is 11 percent, the maximum. The Sixteenth Street crossing is just inside the corporate limits of the Town of Glasgow. The track south of the Sixteenth Street crossing is straight for 5,377 feet, more than a mile.

Defendant's train was northbound at the time of the collision. The train consisted of two diesel engines, eight freight cars and a caboose. The total length of the train was 463.5 feet. The diesel engines were more than 15 feet high and the headlight on the first engine was in operation.

Defendant's right of way line is 33 feet west of the center line of the track. It was uncontroverted that an eastbound motorist approaching the Sixteenth Street crossing on July 5, 1965, could observe defendant's track 150 feet straight ahead and that the same motorist's view of defendant's track south of the crossing would increase from 684.5 feet when 25.5 feet west of the west rail to one mile when 11.5 feet west of the west rail. The evidence was that all occupants of the station wagon had frequently crossed the crossing and were familiar with it.

The Falcon station wagon was driven by Gloria Rhodes McDaniel, decedent's mother and Mrs. Gilliam's granddaughter. Decedent's brothers, George and Larry McDaniel, were also riding in the station wagon. Mrs. Gilliam was seated next to the right front door, decedent next to the right rear door, and Larry next to the left rear door. George was seated on the back seat between Larry and decedent.

The driver testified that she stopped the station wagon as close as she could get to defendant's track, looked and listened, and then proceeded slowly onto the track. She stated that she did not see defendant's train until she was actually on the track and that no horn was blown or bell rung. Her testimony in these respects was corroborated by that of Larry McDaniel and Mrs. Gilliam. George McDaniel testified that he had no recollection of the collision.

Defendant's engineer and fireman both testified that the horn was blown and the bell was rung for the crossing. The fireman, who was seated on the west side of the cab, observed the station wagon approach the crossing. He testified that the station wagon did not stop or slow down and when it become apparent that the station wagon was not going to stop he informed the engineer and the emergency braking was applied.

Decedent's mother described him as a boy of normal intelligence who was full of energy. She testified that all her sons had walked over the Sixteenth Street crossing and that she had warned them of the danger. She stated that decedent knew that the track was dangerous.

Shortly before the collision the station wagon stopped on Sixteenth Street a short distance west of defendant's track to pick up George McDaniel who was walking west on Sixteenth toward Mrs. Gilliam's home. When the station wagon stopped decedent got out to let George in. Neither the decedent nor Mrs. Gilliam attempted to warn the driver of the approaching train before the station wagon was driven onto the track when their view of the track to the south was more than a mile.

Mrs. Gilliam testified on direct examination that after the station wagon stopped at the crossing 'I didn't do anything but sit there.' She testified that her hearing was normal and there is no evidence that her vision was impaired.

We must first decide whether the case was properly submitted to the jury under the comparative negligence doctrine embodied in Code §§ 56-414 2 and 56-416 3. These provisions are closely related and must be read and construed together. Norfolk & Western Ry. Co. v. White, 158 Va. 243, 255, 163 S.E. 530, 534 (1931). The comparative negligence provision contained in Code § 56-416 is operable only if the warnings required by Code § 56-414 are not given, Chesapeake & Ohio Ry. Co. v. Hanes, Adm'r, 196 Va. 806, 815, 86 S.E.2d 122, 127 (1955); and if the failure to give those warnings is a proximate cause of a collision, E.g., Skinner v. Norfolk & Western Ry. Co., 206 Va. 649, 656-54, 145 S.E.2d 170, 173 (1965).

Code § 56-414 requires warnings to be given by trains approaching public grade crossings 'outside of incorporated cities and towns.' The warnings required by Code § 56--414 are not applicable to public grade crossings within the corporate limits of cities and towns. Norfolk & Western Ry. Co. v. Fletcher, 198 Va. 397, 400, 94 S.E.2d 251, 254 (1956); Atlantic Coast Line R.R. Co. v. Clements, 184 Va. 656, 665, 36 S.E.2d 553, 557 (1946); Norfolk & Western Ry. Co. v. Wilkes' Adm'r, 137 Va. 302, 306, 119 S.E. 122, 124 (1923). See also Norfolk & Western Ry. Co. v. Hagy, 201 Va. 183, 187, 110 S.E.2d 177, 180 (1959); Southern Ry. Co. v. Davis, 152 Va. 548, 551, 147 S.E. 228 (1929). Therefore, the warnings required by Code § 56-414 had no applicability to the Sixteenth Street crossing.

Code §...

To continue reading

Request your trial
5 cases
  • Chandler v. National RR Passenger Corp., Civ. A. No. 4:94cv74.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 3 d5 Fevereiro d5 1995
    ...and timely warning of its approach to a crossing located within the corporate limits of cities and towns. Norfolk & W. Ry. Co. v. Gilliam, 211 Va. 542, 178 S.E.2d 499 (1971). The other statute on which Mrs. Chandler fastens her comparative negligence theory is Va.Code § 56-416 which is clos......
  • Norfolk & W. Ry. Co. v. Wright, 751275
    • United States
    • Supreme Court of Virginia
    • 24 d3 Novembro d3 1976
    ...because the accident occurred inside Roanoke's corporate limits. Code § 56--414 (Repl.Vol.1974); N. and W. Ry. Co. v. Gilliam, 211 Va. 542, 545--46, 178 S.E.2d 499, 502--03 (1971). He was under a common law duty to do so only if other signals were insufficient and a whistle was necessary 't......
  • Colonial Natural Gas Co. v. Sayers, VIRGINIA-SOUTHWES
    • United States
    • Supreme Court of Virginia
    • 4 d5 Dezembro d5 1981
    ......        Comess v. Norfolk General Hospital, 189 Va. 229, 52 S.E.2d 125 (1949), upon which Sayers relies, is significant. In that case, the plaintiff went to the hospital at ......
  • Roberts v. Board of Sup'rs of Roanoke County, 940059
    • United States
    • Supreme Court of Virginia
    • 13 d5 Janeiro d5 1995
    ...408 S.E.2d 889, 891 (1991). And statutes which are closely related must be read and construed together. N. and W. Ry. Co. v. Gilliam, 211 Va. 542, 545, 178 S.E.2d 499, 502 (1971). Accordingly, we think the language of Code § 19.2-152.1 regarding agents or attorneys-in-fact for guaranty, ind......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT