Norfolk & W. Ry. Co v. Simmons

• Decision Date: 10 June 1920
• Parties: NORFOLK & W. RY. CO. v. SIMMONS.
• Court: Virginia Supreme Court

103 S.E. 609

NORFOLK & W. RY. CO.

v.SIMMONS.

Supreme Court of Appeals of Virginia.

June 10, 1920.

Error to Circuit Court, Botetourt County.

Action by R. S. Simmons against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Staples & Cocke, of Roanoke, for plaintiff in error.

Haden & Haden, of Fincastle, for defendant in error.

PRENTIS, J. The owner of an automobile truck, with trailer attached thereto, both loaded with household goods, sued the Norfolk & Western Railway Company for damages caused by a collision at a highway crossing the county of Botetourt. There was a verdict and judgment in favor of the plaintiff, of which the company is here complaining.

While the exceptions and assignments of error are numerous, the case presents few if any questions which have not been fully heretofore considered and adjudicated by this court.

There are certain objections to the pleadings; but, as counsel for the company treat them scantily in their briefs, we decline to accept their invitation to enter upon an investigation which they apparently think unprofitable. It is sufficient to say that, in our view, these alleged errors are harmless if existent, and, inasmuch as the case has been fully and fairly tried upon the merits, they may be ignored.

One point much emphasized is the claim that the evidence upon which the plaintiff relies is so improbable, because against reason, that no verdict in favor of the plaintiff can be based thereon; that courts will not allow verdicts to stand when they rest upon evidence which is contrary to the physical facts and human experience, and hence incredible. While the rule is fully recognized in this court (N. & W. Ry. Co. v. Crowe, 110 Va. 798, 67 S. E. 518; N. & W. Ry. Co. v. Strickler, 118 Va. 153, 86 S. E. 824; Mitchell v. Southern Ry. Co., 118 Va. 642, 88 S. E. 56), we cannot agree that it applies to the testimony thus criticized in this case. Theevidence is that of the witness Vass. He was with the driver of the automobile at the time of the accident, and having testified that they stopped about 90 feet away from the crossing to look and listen for an approaching train (though looking at that place was clearly ineffective because there was an intervening hill which shut off their vision), and hearing no warning sound they drove carefully to within about 18 feet of the railway track, intending to stop there to look for the train; that, just about the place where they had determined to stop, he saw the approaching train, and called the driver's attention to it; that the driver "tramped" the clutch which should have released the engine, but the machine continued to go forward, then the service brake was applied, and, the machine still continuing to move, that he (the witness) applied the emergency brake, but it nevertheless continued to move slowly forward to the point of collision. In the meantime he had advised the driver to jump to save himself, and that he (Vass) did jump, while the driver lost his life.

That machinery does get out of order, does become defective, and fail to operate, is a matter of such common knowledge that we are of the opinion that, while unsatisfactory and far from convincing, this testimony is not incredible, and that the rule relied upon has no application thereto.

The third assignment of error is to the effect that the court erred in overruling a motion to instruct the jury to disregard the testimony of the witness reciting certain alleged statements of Mankspile, the deceased driver. The statements were not themselves very material or impressive, but simply related to a conversation between them as to whether, when they made the stop 90 feet away from the crossing, he (the witness) should get off and go forward to the railroad track, where he could see in which the driver said there was not any use in that, that he would stop the truck up near to the track where it could be seen from the seat of the automobile. If material, substantially the same evidence would have remained in the record, even if this which is objected to had been stricken out, for the company's attorney cross-examined the witness Vass fully as to this very conversation and elicited in such cross-examination the identical evidence to which this exception relates.

In C. & O. Ry. Co. v. McCarthy, 114 Va. 181, 76 S. E. 319, this is said as to a similar contention:

"This court has repeatedly held that an objection to the admissibility of evidence is unavailable to one who has himself elicited the same facts in the cause. Douglas Land Co. v. Thayer Co., 107 Va. 292, 58 S. E. 1101; Va. & S. W. R. Co. v. Bailey, 103 Va. 205, 49 S. E. 33, and authorities there cited."

The assignment is without merit.

There are numerous assignments of error based upon the refusal of the court to grant certain instructions offered by counsel for the company. The refusal of some of these instructions was proper, because the court gave the jury nine instructions which were amply sufficient to present the case properly for their consideration. Several others of those refused are based upon the insistence of the company's attorneys that there is no sufficient evidence in the case upon which any verdict against it could be founded. There were some which were objectionable because they concluded with a direction to find for the defendant, and were based upon a partial view of the evidence, and some were objectionable because violative of the spirit, if not the letter, of the Virginia statute which forbids a trial court to direct a verdict.

The negligence alleged is the violation of section 1294d, subsec. 24, Pollard's Code (Code 1919, § 3958). That section as it formerly read provided that the whistle of a train approaching a crossing "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. And the said company shall be liable for damages which shall be sustained by any person by reason of such neglect."

There was a conflict of evidence as to whether the required crossing signal was given, and one of the company's instructions which was refused (No. 8) reads as follows:

"The court instructs the jury that, even though the defendant failed to comply with the statute as to the ringing of the bell and the sounding of the whistle as in said statute set out, nevertheless, if the whistles which were sounded by one of the defendant's engineers were sufficient to give to a traveler approaching the crossing with ordinary care a warning equally as effective as would have been the sounding of the whistle and ringing of the bell in the exact manner prescribed by the statute, then the failure of the defendant to comply with the exact requirements of the statute is not the proximate cause of the injury complained of, and the jury must find their verdict for the defendant."

There are other objections to this instruction, but we will discuss only one, and that is the idea therein embodied that a railway company may escape the imputation of negligence by substituting some other warning signal for that prescribed by the statute, and claim for such substituted warning equal effectiveness. As has been frequently said, this statute and similar statutes...