Powell v. Va.N Ry. Co

• Decision Date: 01 March 1948
• Citation: 187 Va. 384,46 S.E.2d 429
• Court: Virginia Supreme Court
• Parties: POWELL . v. VIRGINIAN RY. CO.

46 S.E.2d 429

187 Va. 384

POWELL .

v.VIRGINIAN RY. CO.

Supreme Court of Appeals of Virginia.

March 1, 1948.

Error to Circuit Court, Prince Edward County; Joel W. Flood, Judge.

Action by Thomas L. Powell against Virginian Railway Company for damages from a collision of his automobile with a loaded coal car. To review and adverse judgment, plaintiff brings error.

Reversed and remanded.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

H. H. Watson, of Crewe, R. E. Garland, of Farmville, and Fielding L. Wilson, of Crewe, for plaintiff in error.

Leigh D. Williams, of Norfolk, Watkins & Brock, of Farmville, and Walter C. Plunkett, of Norfolk, for defendant in error.

BUCHANAN, Justice.

The plaintiff, Powell, brought suit against Virginian Railway Company for injuries to himself and damage to his automobile caused by a collision with a loaded coal car, which he claimed the defendant had negligently left standing at night, unlighted and unattended, on the highway on which he was driving. The verdict of the jury was for the defendant, on which the court entered judgment. We are asked to reverse this judgment for error in instructions given for the defendant.

The accident happened on State Highway No. 360, at a place called Virso, where a railroad siding, composed of two tracks, crosses No. 360 at grade. This siding connects the Virginian Railway Company tracks on the north of the highway with the tracks of the Southern Railway Company on the south. The tracks of these two railroads, at the point of accident, approximately parallel the highway, the Virginian on the north and the Southern on the south, each a short distance from the highway.

Highway No. 360 runs in a general easterly direction from Keysville to Burkeville, and at Virso, between those points, where the collision occurred, it runs almost due east and west. From the Virginian tracks the siding extends to the Southern tracks in a southwesterly direction, so that in crossing the highway it makes an obtuse angle with the center line of the highway on the west, or Keysville side, from which the plaintiff was approaching. From the maps in evidence the two siding tracks appear to be about ten feet apart where they strike the northern edge of the pavement and gradually converge toward the southern edge. The two rails of each track are five feet apart.

Shortly before daylight, on the morning of September 7, 1945, the exact hour being in dispute, the defendant placed eleven coal cars on one of these side tracks and five on the other, so that one of the cars, without lights and unattended, as stated, projected into the highway from the north side. There is a conflict in the evidence as to which of the two tracks this car was on. There is also a conflict as to how far it projected into the road.

The evidence for the plaintiff was to the effect that he, with two companions, was driving his automobile from Keysville to-ward Burkeville, west to east, on the morning of the accident and reached the crossing between 5 and 5:30 o'clock; that the morning was very dark and very foggy, "as black as I ever saw it, " said one of his companions; that the plaintiff was driving at 15 to 20 miles an hour, and on account of the fog had his lights on the low beam; that he could see only a few feet in front of him and was using the white line in the road to guide him, and "noticed the edge of the road some"; that he did not see the signs warning of the railroad crossing and did not know he was on the crossing when the accident happened and did not see the car with which he collided. The plaintiff's statement about the immediate hap-pending was this: "You see, before you get to that place, the white line runs out, and I noticed the side of the road. About that time it hit, and I did not remember anything else for a few minutes."

The pavement of the road is 20 feet wide at the point of accident. As the road approaches the crossing from the west, as plaintiff was traveling, there is a double white line which breaks off 15 feet from the nearest rail and begins again on the opposite side of the tracks about 55 feet away. Because of the angle of the tracks across the road, the eastern, or far, corner of the coal car as the plaintiff approached, projected 8 ¹/₂ feet farther south than the west, or near, corner. The plaintiff collided with the far corner and if this car projected into the road 5 feet and was on the near, or west, track, the white lines stopped about 38 feet from the corner collided with, and 58 feet from the far corner if the car was on the east track.

The evidence for the plaintiff was that the coal car he collided with was on the east, or far, track, and that the corner which he struck projected from 6 to 18 inches over the center line of the highway on to his right-hand side of the road.

The evidence for the defendant was that the cars were placed on the siding between 6 and 6:30 that morning; that the car with which the plaintiff collided was on the west track, that is, the one first reached by the plaintiff; that its east corner, with which plaintiff collided, by measurement, projected 5 feet from the north, or plaintiffs left side of the highway, on to the hard surface of the road, which would leave 15 feet from there to the southern side of the pavement; and that it was not too dark or too foggy for the plaintiff to have seen the car he collided with if he had exercised proper care.

The main error assigned by the plaintiff is to the giving of Instruction No. 23, at the instance of defendant, as follows:

"The Court instructs the jury that if you believe by a preponderance of the evidence that the coal car was to the north of the center line of the highway at the time of the accident, you shall find for the defendant."

The giving of the instruction was based on the view that since Code, section 2154, subsections 112, 113 and 114, require that motor vehicles be driven on the right side of the highway, the violation of that requirement is negligence; hence, if the coal car was on plaintiff's left side of the road he could not have collided with it without driving on his left side of the road, which violated the statute and was, therefore, negligence.

It will be observed that the instruction is a finding instruction which must state a complete case and embrace all elements necessary to support a verdict. Outlaw v. Pearce, 176 Va. 458, 469, 11 S.E.2d 600.

It will also be observed that it told the jury in effect that if the plaintiff drove to his left of the center line of the highway at the time of the accident, that alone barred his recovery, without reference to whether that deviation was slight or great, and without reference to whether it was a proximate or remote cause of the accident, and without reference to whether there was any excuse for his so doing.

There was evidence from one of defendant's witnesses that the coal car was "mighty near to the white line, " and that "it was mighty foggy that morning"; and evidence for the plaintiff that it was very dark and very foggy, and the white line had ceased to guide him.

We think the giving of the instruction was error in view of the evidence.

It is true we have held in a number of eases that violation of the place of travel statutes under the facts of those cases was negligence. Sheckler v. Anderson, 182 Va. 701, 29 S.E.2d 867, and cases there cited.

But while the violation of such statutes is negligence, it does not necessarily follow that such negligence will as a matter of law prevent a recovery by the plaintiff. There must be a causal connection between the violation of the statute and the injury, otherwise the violation is immaterial; and unless it is shown that the plaintiff's violation was a proximate or concurring cause which contributed directly to his injury, he is not thereby barred from a recovery.

"The established rule is that, before an illegal act or omission can be held to be contributory negligence, it must appear that there was causal connection between such act or omission and the injury, and the mere collateral wrongdoing of the plaintiff cannot of itself defeat his right to recover where it did not proximately contribute to his injury. Carlton v. Boudar, 118 Va. 521, 88 S.E. 174, 4 A.L.R. 1480; Southern Ry. Co. v. Rice's Adm'x, 115 Va. 235, 78 S.E. 592." Lavenstein v. Mailie, 146 Va. 789, 801, 132 S.E. 844, 848.

"The violation of a statute, of itself does not necessarily constitute such negligence as will establish the existence of the principle of proximate cause. * * *" Gregory v. Daniel, 173 Va. 442, 445, 4 S.E. 2d 786, 787.

"* * * it is the well-settled law of this State that, unless is is shown that his violation of a statute was the proximate or contributing cause of the injury, the plaintiff is not barred from a right to recover. Kinsey v. Brugh, 157 Va. 407, 161 S.E. 41; C. & O. Ry. Co. v. Barlow, 155 Va. 863, 156 S.E. 397 ." Bray v. Boston, Etc, Corp., 161 Va. 686, 692, 172 S.E. 296, 298.

A plaintiff seeking to recover for an injury caused by the negligence of a defendant must himself be free from negligence; but this general rule " * * * is subject to the qualification that where the negligence of the defendant is the proximate cause of the injury and that of the plaintiff the remote cause, the plaintiff may recover, notwithstanding his negligence. * * *

"The burden was on the defendant...