Norfolk & W. Ry. Co v. Sink's Ex'r

• Decision Date: 13 January 1916
• Citation: Norfolk & W. Ry. Co v. Sink's Ex'r, 87 S.E. 740, 118 Va. 439 (1916)
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. SINK'S EX'R.

87 S.E. 740

118 Va. 439

NORFOLK & W. RY. CO.

v.SINK'S EX'R.

Supreme Court of Appeals of Virginia.

Jan. 13, 1916.

Rehearing Denied Feb. 2, 1916.

Error to CorporationCourt of Koanoke.Action by D. Saylor Good, executor of Mrs Flora Sink, deceased, against the Norfolk &amp Western Railway Company.Judgment for plaintiff, and defendant brings error.Reversed.

InstructionNo. 5 was as follows:

"The court instructs the jury that this is an action based on the charge of negligence, and the burden of proving negligence rests upon the plaintiff, and he must establish it by a preponderance of affirmative evidence.A mere probability that the defendant company has been guilty of negligence will not be sufficient, but negligence is a fact, and must be established like any other fact by preponderance of affirmative evidence, and, unless the plaintiff establishes the fact of negligence on the part of the railway company as alleged in his declaration, there can be no recovery in this case at all."

Theo.W. Reath, of Philadelphia, Pa., and McCormick & Smith, of Roanoke, for plaintiff in error.

Hoge & Williams, of Roanoke, for defendant in error.

KEITH, P.Upon the first trial of this cause there was a verdict for the defendant, which, upon a motion made by the plaintiff, was set aside, and at the second trial there was a verdict and judgment for the plaintiff.

By virtue of section 3484 of the Code of Virginia the court must—

"look first to the evidence and proceedings on the first trial, and if it discovers that the' court erred in setting aside the verdict on that trial it shall set aside and annul all proceedings subsequent to said verdict and enter judgment thereon."

It appears from the bill of exceptions taken by the defendant on the first trial that there was evidence tending to prove that Mrs. Sink approached the Norfolk & Western railroad at a street crossing in the city of Roanoke; that the gates were down; that the bell of the engine was being rung; and that there was an unobstructed view of the railroad track for a considerable distance.The evidence tends to prove that at the point of the accident there were four tracks; that an engine and tender of the Norfolk & Western were going north; that the crew in charge of the engine saw Mrs. Sink approach, but, observing that the gates were down, were of opinion that under the existing conditions it was not to be apprehended that she would walk upon the railroad track, and did not immediately stop the engine; that Mrs. Sink stooped under the gate to the west and approached the track; and that, when it was seen that she was in a position of danger, the crew did what they could for her protection.She was struck by the tender, thrown down, and sustained severe injuries, from which she subsequently died.

We think it cannot be successfully denied that Mrs. Sink was guilty of contributory negligence, and that the finding of the jury of a verdict for the defendant ought not to be disturbed unless the court committed error in the instructions which it gave.

The defendant in error claims that in-struction No. 5 given by the court at the instance of plaintiff in error upon the first trial is erroneous.It is not denied that, "as an abstract proposition of law, it might be true, " yet it is said that "it is not applicable in this case, because the negligence of the defendant appears by the evidence of the defendant's witnesses, the employes operating the engine, " and defendant in error insists that the court, having instructed the jury that i the burden of proving negligence rests upon the plaintiff, and he must establish it by a preponderance of the affirmative evidence, confined the jury in determining the question of negligence to the evidence adduced by the plaintiff.

We do not so understand the instruction.It is for the jury to pass upon the issue of guilty or not guilty, and in passing upon that question it was their plain duty to consider all of the evidence which had been put before them, whether by the plaintiff or the defendant.

InstructionNo. 6 tells the jury that:

"Though they may believe from the evidence that the defendant company did not have the gate on the west side of the Tazewell avenue crossing lowered on the occasion of the approach of the engine and tender at the time of the accident, when plaintiff's decedent went upon said crossing, yet the said failure on the part of the defendant company did not relieve the plaintiff's decedent, Mrs. Flora Sink, from exercising care and caution in attempting to go across the railroad tracks at said crossing, that it was the duty of plaintiff's decedent, Mrs. Flora Sink, before attempting to cross the tracks at said crossing, to look in both directions and to listen for approaching trains, and that, if she did not do this, but went upon the tracks without looking and listening, in such a position as to be struck by the tender of engine 110, then she was guilty of such negligence as precludes any recovery. * * * "

The precise question presented in this instruction arose in this way: There were two gates across the street, one to the west, and one to the east.There is no room for doubt upon the evidence that the eastern gate was down.There is evidence also strongly tending to show that the gate to the west also was down, and that Mrs. Sink stooped under it in approaching the track, but as to the western gate there is some conflict in the evidence, though we think the preponderance of the testimony is with the plaintiff in error upon that point.However that may be, it was to meet that aspect of the proof that instruction No. 6 was given.Defendant in error upon this point states that:

The instruction "might be the law applicable to a road crossing in the country where there are no signals, gates, or watchmen.At such a place the traveler is expected to do his own looking and listening, and is required to rely entirely upon his own faculties.This does not apply with the same force, however, to a street crossing in a city where there is much noise from passing vehicles, and where there are so many things to distract the attention of the traveler, and where the train is supposed to be under control, and certainly does not apply where the law, as in this case, required gates to be erected and the gates to be down."

In the case of Rangeley v. Southern Ry. Co., 95 Va. 715, SOS. E. 386, the court approved the following instruction:

"The court instructs the jury that, though they may believe from the evidence that an ordinance of the city of Danville required the defendant to have a gate at the Craghead street crossing, with a man in charge of the same, and to lower said gates whenever a train attempted to cross said street, and though they may believe from the evidence that the defendant company failed to provide said gatekeeper at the crossing in question, or to have said gate lowered on the occasion of the accident, and though they may believe that the defendant company failed to have at the front of the train as it approached said crossing a light, or to signal its approach by bell or otherwise, yet the said failures on the part of the company did not relieve the plaintiff's intestate, Ellis W. Rangeley, from exercising care and caution in attempting to avoid injury from the approaching train, that it was the duty of said Rangeley, before attempting to cross said track, or while standing on or near said track, to look in both directions, and to listen for approaching trains, and that, if said Rangcley stepped upon said track without looking and listening, or stood in such close proximity to said track without looking and listening as to be struck by said train, then said Rangeley was guilty of such contributory negligence as precludes any recovery, and the jury must therefore find for the defendant."

Two objections were urged to this instruction.One was that:

"The court ought to have defined the 'care and caution' which it was the duty of the plaintiff's intestate to exercise in approaching the crossing under the facts hypothetically stated in the instruction."

Said the court:

"We do not think the jury could have been misled by the language complained of, even if the court had not in the same instruction delined the care and caution which it was the duty of the decedent to exercise.In the next sentence it says: 'That it was the duty of said Rangeley, before attempting to cross the said track, or while standing on or near said track, to look in both directions, and listen...