Norfolk & W. Ry. Co. v. Fletcher, 4551
| Decision Date | 04 September 1956 |
| Docket Number | No. 4551,4551 |
| Court | Virginia Supreme Court |
| Parties | NORFOLK & WESTERN RAILWAY COMPANY, A CORPORATION v. OTTO FLETCHER. Record |
C. H. Combs (F. H. Combs, Combs, Combs & Street, on brief), for the plaintiff in error.
W. Clyde Dennis, for the defendant in error.
Otto Fletcher, hereinafter referred to as the plaintiff, has recovered a verdict and judgment of $5,000 against the Norfolk & Western Railway Company for personal injury and property damages sustained when a car which he was driving was struck by an engine operated by the Railway Company at a private crossing in the Town of Grundy in Buchanan county. The allegation of negligence was that the employees of the Railway Company failed to give a proper and timely warning of the approach of the train. On appeal the Railway Company challenges the sufficiency of the evidence to sustain the verdict, claiming specifically that there is no showing that its employees were guilty of any negligence which proximately caused the collision, and that even if they were, the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law which bars his recovery.
While a map made by the office of the chief engineer of the Railway Company shows that the railroad runs approximately north and south at the scene of the accident, it is generally referred to by the witnesses as running east and west and we will so treat it. Going west, as the train was on this occasion, the main-line track approaches the crossing on a sharp curve to the left around a mountain. On the north side of the main line is a sidetrack and beyond this to the north are several industries located on the right of way of the Railway Company and operated by lessees of that company. These industries are reached by a dirt road which runs eastwardly along the south side of the railroad tracks, then turns sharply to the north and crosses the railroad tracks at a right angle. While this dirt road is not a public highway the undisputed evidence shows that it is frequently used by those going to and from the several industries and the Railway Company maintains the crossing for such use. The Railway Company maintains at the crossing no flagman, gates, or warning device to signify the approach of its trains. As the driver of a car approaches the crossing from the south his view to the right or east, the direction from which the train came, is obscured until he passes beyond the base of the mountain.
On December 23, 1953, about 5:00 p.m., the plaintiff, Fletcher, accompanied by his wife, drove along the dirt road toward the crossing. It was his purpose to cross the tracks at the crossing to transact business at one of the industrial plants. About 125 to 150 feet west of the crossing Fletcher stopped and talked to H. C. McElroy, the manager of the plant which he (Fletcher) intended to visit. After this conversation Fletcher continued along the road, he said, at a speed of about five miles per hour toward the crossing. According to his testimony, when he was 'about 20 feet' from the track he looked 'both ways' but saw no train. He slowed down because, he said, his car 'was real low and I was afraid it would hang up' on the crossing.
Fletcher further testified on direct examination that 'about the time I got upon the track my wife saw it (the train) and hollered at me.' When asked by his counsel, 'When was the first you heard that train was coming?' his reply was, 'When my wife told me there was one coming.' Prior to this, he said, he had not 'heard' any whistle or bell, although he did not 'mean to say' that such signals were not given.
Immediately upon hearing the warning of his wife, Fletcher put the car in reverse and attempted to 'back off' the track but was unable to do so before the engine struck his car.
The plaintiff's wife testified that the car was on the track when she first saw the train. When asked where the train was, and how far from the car, when she first saw it, her reply was, 'I don't know, I just saw it, I don't remember.' At any rate, as soon as she saw the train she warned her husband and that was the first he knew of its approach.
At the time of the accident the plaintiff's right leg and ankle were in a cast as the result of a previous injury. While he testified that this did not seriously interfere with his driving the car, it required that he use his left foot to operate the gas accelerator. When it became necessary to put the car in reverse, as he did in his attempt to clear the track on this occasion, he depressed the clutch with the left foot and operated the accelerator with the cripped right foot.
It is undisputed that at the time of the accident the engine was pulling a train of 101 cars loaded with coal along a slight downgrade at a speed of about 18 miles per hour. The engineer testified that because of the curvature of the track, from his observation post at the right-hand window of the cab he could not see the crossing as the engine neared it. But the fireman who was seated at the window on the left side of the cab, saw the Fletcher car on the track and 'hollered' to the engineer who immediately sounded danger signals by several blasts on the whistle and applied the brakes. At the speed at which the train was moving it was impossible to bring it to a stop before the engine had struck the car and passed beyond the crossing.
One of the issues before the jury was whether the whistle was sounded or the bell rung as the train approached the crossing. The plaintiff's wife testified that she was attentive and 'listening' as they approached the crossing and that the signals were not given. Other witnesses for the plaintiff testified that they did not hear any such signals although they were in a position to hear them and the conditions were such that they...
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