Norfolk & W. Ry. Co v. Wellons' Adm'r

• Decision Date: 12 September 1930
• Citation: 154 S.E. 575
• Parties: NORFOLK & W. RY. CO. v. WELLONS' ADM'R.
• Court: Virginia Supreme Court

154 S.E. 575

NORFOLK & W. RY. CO.

v.WELLONS' ADM'R.

Supreme Court of Appeals of Virginia.

Sept. 12, 1930.

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Several years preceding accident, Corporation Commission required railway to put gates at crossing in question. About six weeks before accident, railway, without permission, installed wigwag signal and electric gong, which it proposed to substitute for gate and watchman. After installation, they were operated in conjunction with gates for about six weeks, but shortly preceding accident gates were no longer operated and remained open from that time. No public notice was given of change.

At crossing in question, gates had been installed by order of Corporation Commission, but same at time of accident had been discontinued and wigwag signal and electric gong substituted therefor. At time automobile in which deceased was riding approached crossing, gates were open and had remained so for some time. The day of the accident was clear, and occupants of automobile approaching crossing in question would have clear and unobstructed view of entire crossing from both sides. Both driver of automobile and plaintiff's decedent must have been fully aware of substitution of one set of signals for another, since they lived near crossing and used it almost every day.

Error to Circuit Court, Norfolk County.

Action by Susan Emma Wellons' administrator against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed.

R. M. Hughes, Jr., of Norfolk, and W. Mon-cure Gravatt, of Blackstone, for plaintiff in error.

James G. Martin, of Norfolk, and Tom E. Gilman, of Portsmouth, for defendant in error.

HOLT, J.

The Norfolk & 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 viewfrom 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 west-bound 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 "wigwag" 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 wigwag 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 to cross that track in front of that train, " and it was after this that plaintiff's decedent undertook to cross.

Without discussing the evidence, we will content ourselves with saying that train No. 3 gave the statutory signals of approach. We will likewise deal with this case upon the theory that Mrs. Wellons was the guest of her son-in-law, Mr. Forehand, at the time of the accident and sat by him in the truck cab. At the time of the accident, the gate arms were standing up and could be plainly seen.

No elaborate statement and no argument is necessary to show that Forehand was negligent. Neither gongs nor gates re lieve a traveler from the exercise of ordinary care and caution. Kimball and Fink v. Friend, 95 Va. 125, 27 S. E. 901. To drive in front of an on-coming 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.

"It cannot be denied that the failure of a traveler upon a highway to look (and listen) before going upon a railroad track, when there is no obstructed view, and that, having such unobstructed view, the going upon a railroad track from a safe place immediately in front of a moving train which is then so close as to make a collision inevitable, is negligence per se. N..& W. Ry. Co. v. Sink, 118 Va. 439, 87 S. E. 740; Washington & Old Dom. Ry. Co. v. Zell's Adm'r, 118 Va. 755, 88 S. E. 309; Norfolk Southern R. Co. v. Smith, 122 Va. 302, 94 S. E. 789; Canody v. Norfolk & Western Ry. Co., 129 Va. 56, 105 S. E. 585; Washington & Old Dom. Ry. Co. V. Thompson, 136 Va. 597, 118 S. E. 76; Ethe-ridge v. Norfolk Southern R. Co., 143 Va. 789, 129 S. E. 680." Southern Ry. Co. v. Davis, 152 Va. 548, 147 S. E. 228, 229.

While there had been no notice of the substitution of one set of signals for another, yet both of these unfortunate people must have been fully aware of it, for they live near the crossing and used it almost every day. The new signals had been in use for more than a month, though the use of the gates had continued up to the preceding Saturday.

It is true that there were two trains passing the point of the accident about this time, but the first had passed and gone nearly a quarter of a mile before it met No. 3, and the train that did the damage did not come from behind another which had just passed, but was on the track that lay next to the approaching truck. Sight of it was never at any time cut off or interfered with.

Forehand 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. Southern Ry. Co. v. Jones, 118 Va. 685, 688, 88 S. E. 178.

The negligence of Mr. Forehand is not to be imputed to Mrs. Wellons. Southern Ry. Co. v. Jones Adm'r, supra; Atlantic & D. R. Co. v. Ironmonger, 95 Va. 629, 29 S. E. 319; Virginia Ry. & Power Co. v. Gorsuch, 120 Va. 655, 91 S. E. 632, Ann. Cas. 1918B, 838; Hancock v. N. & W. Ry. Co., 149 Va. 829, 141 S. E. 849. Negligence, to be charged against her must be her own.

In order for the plaintiff to recover 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. Norfolk Southern R. Co. v. Banks, 141 Va. 715, 126 S. E. 662; Etheridge v. Norfolk Southern R. Co., 143 Va. 789, 129 S. E. 680; White v. Southern Ry. Co., 151 Va. 302, 144 S. E. 424; Southern Ry. Co. v. Johnson, 151 Va. 345, 146 S. E. 363. A plaintiff can only recover compensation for such damages as negligence occasioned.

In the case in judgment, 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 all invitation to the traveling public.

Was Mrs. Wellons herself negligent? She sat on the front seat with the driver, and it was her duty 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. Opportunities for observation are to be remembered. One on the front seat of a roadster can appreciate an on-coming peril more readily than if seated on the back seat of a limousine.

The guest should not undertake to drive, and may trust the driver until it becomes plain that such trust is misplaced.

"Collisions with Railroad Trains—Duty of_ Occupant. —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.

"He must use reasonable care to learn of the approach of a train and to keep out of its way." Berry on Automobiles (4th Ed.) § 590.

"Even where the negligence of the driver of a private vehicle cannot be so imputed, an occupant thereof is not excused from exercising...