Payne v. Brown

• Decision Date: 15 June 1922
• Citation: 112 S.E. 833
• Parties: PAYNE, Director General of Railroads. v. BROWN.
• Court: Virginia Supreme Court

112 S.E. 833

PAYNE, Director General of Railroads.

v.BROWN.

Supreme Court of Appeals of Virginia.

June 15, 1922.

Error to Circuit Court, Greensville County.

Action by C. M. Brown against John Barton Payne, Director General of Railroads, operating the Virginian Railroad. Judgment for plaintiff, and defendant brings error. Affirmed.

Walter C. Plunkett, of Roanoke, and Williams, Loyall & Tunstall, of Norfolk, for plaintiff in error.

Jno. N. Sebrell, Jr., of Norfolk, and E. Peyton Turuer, of Emporia, for defendant in error.

KELLY, P. This is an action by C. M. Brown against the Director General of Railroads, operating the Virginian Railroad, for damage to a motortruck caused by a collision with one of the defendant's freight trains at a public crossing. There was a verdict and judgment for the plaintiff, and the defendant assigns error.

The accident occurred in the daytime, just west of Jarrett, an unincorporated village. At the crossing and for some distance in each direction therefrom, the defendant maintained four parallel tracks, which, counting fromnorth to south, were respectively designated as the "team track, " the "storage track, " the "pass track, " and the "main track." When the collision occurred the truck was moving south on the public road, and the train was moving west on the pass track. In each direction from the crossing for a long distance the tracks are perfectly straight, but at the time of the accident the view of the pass track and the main track each way, for one coming south over the crossing, was entirely cut off by long lines of coal cars which the defendant had stored or placed on the team track and the storage track. These lines of cars were separated only by the width of the crossing—that is to say, they extended right up to the crossing on each side. The space between the team track and the storage track is about 25 or 30 feet, and between the storage track and the pass track about 8 feet. The train, which had come from the east, and had run in on the pass track, stopped at Jarrett station, east of the crossing, long enough (just how long does not appear) to load and unload some local freight, and, having dropped the caboose on a siding, was proceeding west on the pass track for the purpose of placing some cars on one of the other tracks at a point west of the crossing. The train at that time was composed of some 15 or 20 cars, and had attained a speed of 12 or 15 miles an hour, and the engine was within not less than 70 nor more than 100 feet of the crossing when the truck passed the end of the stationary coal cars on the storage track, and thus reached a point where the truck driver and the engineer could see each other. Until this moment the engineer could not see the truck, and, according to the plaintiff's witnesses, the truck driver could not see the engine, although there is evidence for the defendant (evidently rejected by the jury) tending to show that the smokestack and top of the cab was in the line of the driver's vision over the top of the coal cars. The driver of the truck was moving so slowly that within the few feet available to him after seeing the engine he was able to stop the truck before its front wheels quite reached the north rail of the pass track, and he attempted to back away, but his reverse gear did not work promptly, and he failed in this attempt. Whether the engineer did all he should have done to avoid the collision is a question on which there is some conflict in the evidence. However this may be, the engine struck the bumper or the front springs on the truck, pushed or knocked it along the track a distance of something like 12 feet, and at that distance beyond the crossing came to a full stop. The truck was seriously damaged, but the driver and a colored boy who was riding with him both escaped without injury, and the truck itself was able to leave the scene under its own power.

The testimony of the driver and the boy with him was to the effect that they were familiar with the crossing; that the conditions prevailing that day with reference to the coal cars on the tracks were usual at that point; that they did not stop, but slowed up, looked and listened for a train, saw and heard none, and proceeded at slow speed (about 4 miles an hour) across the first two tracks, continuing to look and listen until they came in view of the engine, as above stated: that the truck was running smoothly, and making very little noise; that the colored boy was standing up in an effort to get a better view over the top of the coal cars; that no bell was sounded, and no whistle was blown for the crossing.

The employes in charge of the train say, on the other hand, that they blew the whistle and rang the bell in full compliance with their duty in that respect, and that the engine was making steam, throwing out smoke, and making considerable noise. This, however, like the evidence that the smokestack and cab were visible over the top of the cars, was in conflict with the plaintiff's evidence and reasonable inferences therefrom, was rejected by the jury, and cannot be considered by us except in so far as it may be material to certain questions of law arising upon the instructions.

The first ground upon which we are asked to reverse the judgment is that the court erred in refusing to set aside the verdict as contrary to the law and the evidence.

In support of this contention it is urged that the plaintiff's driver, in view of his familiarity with the crossing and its obstructed condition, did not take due precaution for his safe passage over it.

The question is a close one. We do not say that, if we were sitting as a jury, and passing upon the facts of this case as they appear in type, we would find for the plaintiff. The driver could have safely stopped his truck, certainly just before he reached the team track, and perhaps between the latter and the storage track, and sent the colored boy forward to give him a signal. But would that course have been dictated by ordinary care, or would it only have been exacted by the highest degree of care?

The duty of the driver was to exercise ordinary care. This is elementary. But ordinary care depends upon the circumstances of the case, and must be commensurate with the danger. Wash. & O. D. Ry. Co. v. Zell, 118 Va. 755, 759, 88 S. E. 309; Jeffress v. Va. Ry. & P. Co., 127 Va. 694, 713, 104 S. E. 393. This was a dangerous crossing and the driver knew it.

It must be remembered, however, that what is ordinary care in a given case is always a question to be determined by the jury, if the facts are such that fair-minded men might reasonably differ upon the question. What would a man of ordinary prudence have done under the circumstances of this case? The driver and his companionknew in advance, and were bound to observe at the time, that the view at the crossing was obstructed. But it does not clearly appear that they might not have supposed that they would be able to hear a train or see an engine or its smoke over the top of the cars. Indeed, witnesses for the defendant testified that this very thing could have been done at that time, and the defendant relied upon that evidence in the defense of this action. To be sure, the jury found as a fact that the driver and his companion could not hear the train or see any part of the engine, or the smoke from the engine, but it does not seem unreasonable to assume that persons undertaking to cross in an automobile might in advance of the actual experiment have supposed that, if there was a train on the other side of the coal cars, they would be able to see it or hear it before reaching one of the unobstructed tracks. Can we say, in view of the evidence as a whole, that the plaintiff's driver was bound to know, in the exercise of due care, that the looking and listening which he was doing would be ineffective? We think not. He slowed down, ran cautiously, and continued to look and listen. He had reason to expect that the train, if near, would give some signals of its approach. If the latter had been done by the defendant's employes, the driver would have been warned, and the accident in all probability would have been avoided. This, at least, is one view which reasonable men might take of the situation.

The case of U. S. Spruce Lumber Co. v. Shumate, 118 Va. 471, 87 S. E. 723, is cited by the defendant, and the contention is made that the decision therein conclusively shows that there could be no recovery in the instant case. Such is not our interpretation of that decision. The demurrer was sustained in the Shumate Case because the declaration showed that the precautions taken by the plaintiff were wholly and necessarily ineffective, and that he thereafter neglected to look for a train, notwithstanding his subsequent opportunity to do so effectively before entering the track. He stopped at a place where he could only have made looking of avail by leaving his buggy and going forward to a point at which his view would not be obstructed, but without doing that, and without looking again after he had passed the obstruction, he proceeded without further precaution to cross the track. As was said by Judge Cardwell, who delivered the opinion of the court:

"The inference necessarily to be drawn from the facts stated is that the plaintiff either did not look for the approaching train before going on the railroad track, at a point after passing the obstructions from which he could have seen, had he looked, the engine and car which struck the buggy in which he was riding, or upon passing the obstruction the approaching engine and car was seen and the occupants of the buggy recklessly undertook to cross the track before the car reached the crossing, in either of which events the contributory negligence of the plaintiff would bar his recovery in this action."

In Purcell v. Wash. & O. D. R. Co., 132 Va.—, 111 S. E. 300, 302, we said:

"The gist of the decision in the Shumate Case, in so far as that decision is...