Norfolk & W. Ry. Co. v. Hagy, 4954

• Decision Date: 03 September 1959
• Docket Number: No. 4954,4954
• Citation: 201 Va. 183,110 S.E.2d 177
• Court: Virginia Supreme Court
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY v. EMMETT GRAHAM HAGY. Record

Page 177

110 S.E.2d 177

201 Va. 183

NORFOLK AND WESTERN RAILWAY COMPANY v. EMMETT GRAHAM HAGY.

Record No. 4954.

Supreme Court of Appeals of Virginia

September 3, 1959.

Leonard G. Muse (Andrew S. Coxe; Woods, Rogers, Muse & Walker, on brief), for the plaintiff in error.

Israel Steingold (L. E. Hurt, Jr., on brief), for the defendant in error.

JUDGE: EGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

Emmett Graham Hagy, sometimes hereinafter referred to as the plaintiff, has recovered a verdict and judgment of $70,000 against the Norfolk and Western Railway Company for damages for personal injuries sustained when a truck which he was driving was struck by an engine and tender operated by the Railway Company at a crossing in the town of Richlands in Tazewell county. In its main assignments of error the Railway Company challenges the sufficiency of the evidence to sustain the verdict, claiming specifically that the plaintiff was guilty of contributory negligence which bars his recovery, and the ruling of the lower court in submitting to the jury whether the operator of the engine had the last clear chance to avoid the collision.

The accident occurred on Saturday, October 23, 1954, at approximately 12:30 p.m., on a clear sunshiny day, when the plaintiff drove his truck northwardly onto the railroad crossing on the singletrack main line of the Railway Company between Bluefield, West Virginia, and Norton, Virginia, and was truck by an engine and tender which were backing westwardly along the track. To the east of the crossing, the direction from which the engine and tender came, the track is straight for a distance of 3,000 feet. About 275 feet east of the crossing a spur track leads off from the southern side of the main line and runs southwesterly to an Esso Standard Oil storage plant. Approximately 900 feet east of the crossing Oil storage tracks, one on each side of the main line, lead eastwardly parallel to the main line. At the time of the collision there were no trains, cars, or engines on the spur or storage tracks.

An unpaved road, running east and west, lies south of and parallel to the main railroad track. It is used by travelers in going to and from the houses fronting on the southern side of the road to the crossing where the accident occurred. As this road goes westwardly toward the crossing it passes over the spur track and forks or divides. One fork, turning southwesterly to the left, leads to the Esso plant; the other fork, turning northwesterly to the right, proceeds in a right-hand arc toward the crossing. From 15 to 25 feet south of the southern rail at the crossing the road straightens out, crosses the track at right angles, and leads to U.S. Highway No. 460. This highway runs parallel to the railroad and at the crossing its southern edge is 50 feet from the northern rail.

Hagy, the plaintiff, was twenty-seven years of age at the time of the accident and had lived at Richlands all of his life. He was in good health, an experienced driver, and employed as a deliveryman by a local florist. He testified that he was familiar with the crossing and for five years preceding the accident had driven over it 'practically every day' in making deliveries for his employer and visiting his sister who lived on the road leading to the crossing. Indeed, he said, he had frequently driven over the crossing the identical truck which was involved in the collision. This was a panel truck with a closed body, a front window on each side of the driver's seat, and the usual front windshield.

On this occasion the plaintiff's eleven-year-old niece was seated on his right. They had just left the home of Hagy's sister on the south side of the road. Hagy testified that because the road was rough and unpaved he proceeded westwardly at from five to six miles per hour and crossed the spur track at about the same speed. As he crossed the spur track, he said, from his seat 'it was hard to see up the track too far,' so he asked his little companion whether she saw 'anything.' Her reply was, 'No, it's one going up.' Then, he said, 'I proceeded on across' from the spur track toward the main line.

The undisputed evidence is that the distance between the northern rail of the spur track and the southern rail of the main line at the crossing is approximately 65 feet. The road is rough and downgrade for a short distance from the spur track and then up a slight grade to the main track. Because of the rough condition of the road, Hagy said, he continued from the spur track toward the main crossing at about the same speed of five or six miles per hour; that when he was 'closer to the main track' he 'looked up there and saw the train, the back of it,' and 'thought' it was 'standing still.' He further said, 'If it had give me a signal or anything like it always does, I'd have stopped' and 'wouldn't have went across.' But hearing no signal, he assumed that the way was clear, gave his attention to traffic on the main highway ahead, and proceeded onto the crossing where the collision occurred. According to his testimony he saw the engine and tender but the one time and had no 'recollection of ever seeing' them moving.

It is undisputed that as Hagy approached the crossing the engine and tender were not standing, as he thought, and were not 'going up,' as the little girl had said, but were backing toward the crossing at a speed variously estimated from 25 to 35 miles per hour. The rear of the tender struck the right rear fender and bumper of the truck, throwing the vehicle to the north side of the track. The engine and tender came to a stop about 300 feet west of the crossing. The little girl was killed instantly and Hagy was seriously injured.

Hagy said that he was unable to estimate in feet how far the front of the truck was from the nearest rail at the crossing when he first saw the tender. He said at that time he was 'coming up that rise toward the crossing. ' Nor would he estimate in feet how far the tender was from the crossing when he first saw it. Later, during the trial, he returned to the stand and marked on a photograph the approximate position of the tender when he first saw it. This was estimated at from 212 to 264 feet from the crossing.

Witnesses for the plaintiff testified that the crossing was much used and that trains passing over it customarily blew for it. However, they said, on this occasion no signal was given, and Richard H. O'Dell, the engineer, admitted this to be true.

O'Dell testified that he was seated on the right-hand side of the engine, that is, on the southern side, as it approached the crossing, on a slight downgrade at a speed of from 30 to 35 miles per hour. He first saw the plaintiff's truck as it came off the spur track which is about 65 feet from the crossing. The engine was then about 160 feet from the crossing. He did not blow the whistle, but since the engine and tender appeared to be in plain view of the driver of the truck, he (O'Dell) thought the driver would stop and not attempt to cross ahead of them. However, he said, when the truck was about half way between the spur track and the crossing, the truck 'speeded up' and he (O'Dell) realized that 'he was not stopping' and applied the emergency brakes. But, as he further said, the engine was then only about 80 feet from the crossing and it was impossible with the emergency brakes to bring it to a stop before the collision. At the speed at which he was traveling O'Dell estimated that it would have required 'several hundred feet' to have stopped the engine with the emergency brakes.

The undisputed evidence on behalf of the Railway Company is that the braking equipment on the engine was in good condition and that with emergency brakes, at a speed of 25 miles per hour it would have required about 400 feet, at a speed of 30 miles per hour it would have required about 500 feet, and at a speed of 35 miles per hour it would have required about 600 feet to have brought the engine to a stop.

Since the crossing is in an incorporated town and there is no evidence of an ordinance requiring the sounding of crossing signals, it is conceded that Code, § 56-414, as amended, imposing the duty of giving crossing signals, and the companion statute, Section 56-416, substituting the doctrine of comparative negligence for that of contributory negligence, are not applicable. Consequently, it must be determined by the application of common-law principles whether the engineer and fireman were negligent in not giving signals of the approaching engine and tender and whether the plaintiff was guilty of contributory negligence.

We hold, and the Railway Company concedes, that because of the nature of the crossing, its frequent use by the public with the knowledge of the Railway Company, and the custom of the operators of the trains to sound signals for the crossing, the jury were warranted in finding that the engineer and fireman were guilty of negligence in not giving adequate and timely warning of the approach of the engine to the crossing. Norfolk & Western Ry. Co. v. Fletcher, 198 Va. 397, 401, 94 S.E.2d 251, 254, and cases there cited.

While some of the circumstances of the present case are unusual, the determination of whether the plaintiff was guilty of contributory negligence turns upon the application of simple and wellsettled principles. It is elementary that a traveler on a highway before crossing a railroad track...