Norfolk & W. Ry. Co v. White

• Decision Date: 17 September 1931
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. WHITE.

163 S.E. 530

NORFOLK & W. RY. CO.

v.WHITE.

Supreme Court of Appeals of Virginia.

Sept. 17, 1931.

As Amended on Rehearing March 24, 1932.

HOLT and EPES, JJ., dissenting.

Error to Court of Law and Chancery of City of Norfolk.

Action by notice of motion by John Thomas White against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before CAMPBELL, HOLT, EPES, GREGORY, and BROWNING, JJ.

F. M. Rivinus, of Roanoke, W. Moncure Gravatt, of Blackstone, and R. M. Hughes, Jr., of Norfolk, for plaintiff in error.

B. A. Banks and Kelsey & Jett, all of Norfolk, for defendant in error.

BROWNING, J.

This is an action at law by notice of motion instituted in the court of law and chancery of the city of Norfolk, on June 1, 1929, to recover from the defendant company damages in the sum of $15,000 for personal injuries received by White, the plaintiff, on the night of March 17, 1929, at or on the crossing of the railroad tracks of the defendant over Barre street in Norfolk, Va., as the result of a collision between a certain engine and cars owned and operated by the defendant with a passenger bus operated by the plaintiff over said crossing. The defendant's train was bound in an easterly direction and the plaintiff's bus in a southerly direction.

The defendant's line of railway may be saidto very nearly belt or circle the city of Norfolk.

The plaintiff in error was the defendant in the trial court, and the defendant in error was the plaintiff in said court, and in such relation they will continue to be referred to.

To the notice of motion the defendant demurred and filed its motion to strike out certain portions of the motion. The demurrer and motion to strike were overruled after certain language that was objected to was stricken therefrom. The defendant denied all negligence and relied upon the contributory negligence of the plaintiff.

The jury found for the plaintiff and assessed his damages at $6,500. The defendant's motion to set aside the verdict for reasons therein stated was overruled.

The facts were these: The defendant's tracks, five in number, crossed Barre street in the said city furnishing the means for operating its trains to and from Lambert's Point, its terminal in said city. The plaintiff was the driver of a bus owned by the Virginia Electric & Power Company, which ran from Pollard street through Barre street to the downtown section of the city. On the night of March 17, 1929, about 8 o'clock, the plaintiff drove said bus across the tracks of the defendant to Pollard street and there turned, taking on two passengers, and as he approached the said tracks he paused near the rear of a disabled bus, which was parked on the right-hand side of Barre street, before going upon said tracks and looked to the right and the left without seeing the defendant's train or hearing it. His testimony was that a dark object bore upon him without ringing its bell or sounding its whistle and without lights just when he was passing over the fourth of the parallel tracks over said crossing. The plaintiff was quite seriously injured. His head was cut, requiring sixteen stitches to be taken, a number of his teeth were knocked out, his lower lip was cut, and his right leg was lacerated. He was a patient in a hospital for over four weeks and was under the treatment of physicians for the open leg wound for over sixty days. One of his physicians testified that his injuries were not of a permanent nature.

The defendant urged six assignments of error to the judgment of the court, which are as follows:

"1. The Court erred in refusing to set aside the verdict and enter judgment for the defendant, and in applying the Mitigation Rule provided under section 3959 of the Virginia Code rather than treating such rule as inapplicable to the locomotive bell ordinance of Norfolk City and denying recovery.

"2. The Court erred in refusing to grant Instruction Y as asked by defendant, for like reasons.

"3. The Court erred in refusing to set aside the verdict and grant defendant a new trial on the ground that the verdict was excessive.

"4. The Court erred in refusing to set aside the verdict and grant defendant a new trial by reason of the failure of the Jury to mitigate the damages on account of plaintiff's negligence.

"5. The Court erred in refusing to grant Instruction E as asked by the defendant explaining to the jury the meaning of mitigating damages.

"6. The Court erred in refusing to receive the affidavits of six of the seven trial jurors offered by defendant to show that the jury had not mitigated the damages on account of plaintiff's negligence, and had not understood the instruction with reference to mitigation of damages."

The first assignment of error calls in question the judgment of the trial court In holding that sections 3958 and 3959 of the Code were applicable In the determination of the case at bar. These statutes, for the sake of ready understanding, we quote in full:

Section 3958 is as follows:

"Bell and whistle; liability for failure to use.--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 such whistle shall be sharply sounded outside of incorporated cities and towns at least twice at a distance of not less than three hundred yards nor more than six hundred yards from the place where the railroad crosses upon the same level any highway or crossing, and such bell shall be rung or whistle sounded continuously or alternately until the engine has reached such highway crossing, and shall give such signals in cities and towns as the legislative authorities thereof may require."

Section 3959 is as follows:

"Effect of failure to give statutory signals. --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 fact that a traveler on such highway failed to exercise due care in approaching such crossing shall not bar recovery for an injury to or death of such traveler, nor for an injury to or the destruction of property in his charge, where such injury, death, or destruction results from a collision on such crossing between such engine or train and such traveler or the property in his charge, respectively, but the failure of the traveler to exercise such care, may be considered in mitigation of damages."

It will be noted that they are found in the Code as portions of chapter 155, entitled "Railroads and Railroad Companies, " and most of its sections are declarations of posi-tive duties required by them. Section 395S constitutes a single sentence, and it is seen that it provides for the duty of railroad companies to equip their locomotive engines with a bell and steam whistle, the use of which is different outside of cities and towns which are incorporated and inside of such municipalities and the concluding portion of the statute is in these words: " * * * and shall give such signals in cities and towns as the legislative authorities thereof may require."

Pursuant to this statutory authority, the city of Norfolk passed an ordinance known as section 494 of the Norfolk City Code, and its subsection 4 is as follows: "The person or persons having charge of railway engines operating within the limits of the city shall, when approaching a street crossing, ring or cause to be rung a bell, and all such engines shall be provided with spark arresters."

Thus we find that in the city of Norfolk its legislative authority has specified such signal as is incumbent upon the railroads operating within its limits to give. The title of section 3959 is in these words, "Effect of failure to give statutory signals, " and in the body of the statute we And these words referring to the failure of the employees in charge of any railroad, engine, or train to comply with the provisions of the statute immediately preceding which is section 3958: " * * * Signals required by law * * *." The effect of section 3959 is to absolve the traveler from the legal effect of contributory negligence where the signals referred to are not given and allow him, in spite of such, negligence, to recover, but such recovery to be reduced to the extent of his own negligence, in other words, a mitigation of damages. Again, section 3959 uses this language: " * * * the signals required by law on approaching a grade crossing of a public highway. •

The above excerpts from the statute and its caption or title constitute the source of an ingenious and forceful argument upon the part of the defendant's counsel in accentuating the position of the defendant that the statutes referred to are inapplicable to the case in judgment.

It is quite elementary to say that in construing a statute the primary quest is to find the intention of the enacting" body, which is, in this instance, the Legislature. We think it is perfectly manifest that what the Legislature meant to do was to provide for the safety of those using the highways of the state and thus to require reasonable things of railroads, the compliance with which would likewise inure to their benefit.

If this is so, can we brush aside and by our judgment render nugatory this most salutary purpose and intent because forsooth the statutes contain words which might be said to be inartificial and susceptible of such tech nical construction, which, if adopted, would defeat the legislative intent? The defendant, in stating its interpretation of the legal significance of the words "signals required by law, " as found in section 3959, is confident that ordinances of municipalities do not come within the meaning of the words and cases are cited which it thinks sustains its position. The gist of the argument is that an 6rdinance is not a law. This court in the case of City of Richmond v. Supervisor of Henrico Co., 83 Va. 204, at page 210, 2 S. E. 26, 29, has said: "The ordinance of the...