Railway Company v. Bacon

• Citation: 156 Va. 337
• Court: Supreme Court of Virginia
• Decision Date: 19 March 1931
• Parties: THE VIRGINIAN RAILWAY COMPANY v. FRANK W. BACON.

Page 337

156 Va. 337

THE VIRGINIAN RAILWAY COMPANY v. FRANK W. BACON.

Supreme Court of Virginia, Richmond.

March 19, 1931.

Present, Prentis, C.J., and Campbell, Holt, Epes and Browning, JJ.

1. JUDICIAL NOTICE — Automobiles — Windows and Curtains — Case at Bar. — In the instant case plaintiff was injured in a crossing accident. Plaintiff was a guest in an automobile driven by a friend. The vision of plaintiff and his friend was obscured by the automobile curtains, which were up, but the day was clear and it is a matter of common knowledge that these curtains have in them windows of some kind through which one can see so conspicuous an object as a locomotive.

2. AUTOMOBILES — Crossings — Injury to Guest — Contributory Negligence of Guest — Case at Bar. — In the instant case plaintiff was injured in a crossing accident. Plaintiff was a guest in a car driven by a friend. The train which struck the automobile could have been seen by the travelers for more than 1,500 feet, had any sort of proper care been approaching this crossing and to look out. This, plaintiff claims he approaching this crossing and to look out. This, plaintiff claims he did. That he did it carelessly is too plain for argument, for neither plaintiff nor his friend saw this train at all until the moment of impact. They were traveling at a rate of eight or ten miles an hour, and the train at the rate of from twenty-five to thirty miles an hour.

Held: That it was patent that the plaintiff was guilty of primary negligence, and that his negligence contributed to his injury.

3. AUTOMOBILES — Crossings — Instructions — Instructions not Sustained by Evidence. — In the instant case, an action for injuries to a guest in an automobile at a crossing, the court instructed the jury that contributory negligence on the part of the plaintiff, the guest in the automobile, could not be presumed, but that plaintiff was presumed to have exercised due care, in the absence of evidence to the contrary, and the burden was upon the defendant to prove contributory negligence, unless the evidence offered by the plaintiff showed that he was guilty of contributory negligence, or unless it might be fairly inferred from all of the evidence.

Held: That it was error to give this instruction, as it submitted to the jury the question of contributory negligence of plaintiff, whereas his negligence was too patent for discussion, and no verdict based upon its non-existence could stand.

4. PRESUMPTIONS AND BURDEN OF PROOF — Evidential Presumptions. — Evidential presumptions are resorted to in the absence of evidence and have no place in a case in which all of the facts fully appear and which necessarily point to one conclusion.

5. AUTOMOBILES — Imputable Negligence — Guest. — The negligence of the driver of an automobile cannot be imputed to a guest. But an instruction to that effect is not applicable in a case where it appeared from the evidence that the guest was himself guilty of primary negligence.

6. AUTOMOBILES — Crossings — Contributory Negligence — Failure to Give Statutory Signals — Bar to Recovery or Mitigation of Damages. — The instant case was an action against a railroad for injuries received in a crossing accident. The trial court instructed the jury that when defendant failed to give the statutory signals and plaintiff was injured, there was a presumption of law that such failure caused the injury. At the time of the accident his automobile curtains were down and plaintiff must have looked through the window, which limited his angle of vision. The train which occasioned the damage came measurably from behind. Plaintiff should have seen it and his failure to do so was negligence. But the mere fact that he was careless in looking did not preclude a recovery, but must be weighed in mitigation of damages. It is possible that he might have heard the whistle, if sounded, and in that way have saved himself. Whether or not the whistle was blown was for the jury.

Held: That the instruction was improper. There was no occasion to resort to a presumption at all, for something more was shown by the record than an injury and failure to give the required statutory signals.

7. AUTOMOBILES — Crossings — Instructions — Plaintiff Acting as a Reasonably Prudent Man Might — Case at Bar. — In the instant case, an action arising out of a collision at a crossing, the court instructed the jury that they could not find plaintiff guilty of contributory negligence if in approaching and proceeding over the crossing he exercised such precaution as an ordinarily prudent and reasonable person should have exercised under the circumstances. There was no evidence in the record that plaintiff acted as a reasonably prudent man might. He was a passenger upon the front seat of the automobile and was told that he was approaching a crossing and to look out for approaching trains. He was, therefore, as a matter of law, guilty of negligence if he failed to see a train when his view for more than a thousand feet was across an open field.

Held: That there was no evidence in the case to support the instruction.

8. AUTOMOBILES — Crossings — Last Clear Chance — Case at Bar. — The instant case was an action arising out of a collision between a train and an automobile at a crossing. The automobile on a clear day, on level land, apparently under complete control, approached the railway crossing at a rate of eight or ten miles an hour. The train was drawn by two engines and both the firemen testified that they saw the automobile but that there was nothing to apprise them of danger until too late. There was nothing to apprise the crew that the travelers were not fully conscious of the situation. The slowness of their approach seemed to bear testimony to that fact. The train had the right of way and the presumption was that the travelers would exercise elementary prevision for their own protection. Any other rule would impose an unwarranted hardship upon railroads.

Held: That the doctrine of the last clear chance had no application to the facts of the case, and an instruction as to that doctrine should not have been given.

9. CROSSINGS — Whether Signals were Given — Evidence — Positive and Negative Evidence — Case at Bar. — In the instant case, a crossing accident, the court rejected an instruction that the positive testimony of a single witness that he heard the bell ring or the whistle blow prior to the accident, ought ordinarily to outweigh the testimony of several witnesses who, with the same opportunities to hear, testified that they did not hear the bell or the whistle. Plaintiff testified positively that he was listening for a locomotive whistle and that none was sounded. A passenger on the train, who wished to get off at the next station, and was listening for the whistle that she might gather up her packages in time, testified that no crossing signal was given. This evidence, negative in form, was positive in substance.

Held: That the instruction was properly rejected.

10. AUTOMOBILES — Crossing Collision — Evidence — Testimony of a Witness that he had Recovered a Judgment for Injuries Suffered in the Same Collision. — The instant case was an action for injuries sustained by plaintiff in a collision between an automobile and a train. A witness, who was the driver of the automobile, was permitted to testify that he had recovered a judgment against the railroad for injuries suffered in this collision. This would, of course, have been manifestly improper but for the fact that it was brought out by the defendant itself, who asked the witness if he had not brought suit. It was then proper to tell the jury what result followed. Failure to do this would have carried with it the suggestion that the witness had himself failed in an effort to recover compensation.

11. CROSSINGS — Automobiles — Injury to Guest in Crossing Accident — Whether Signals were or were not Given. — In the instant case, an action by a guest in an automobile against a railroad for injuries received in a collision between a train and the automobile, the guest was guilty of contributory negligence as a matter of law. If the crossing signals were given, he was not entitled to recover anything; if they were not given, he was entitled to recover, but his own negligence should be considered by the jury in mitigation of damages.

Error to a judgment of the Circuit Court of Lunenburg county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

W. H. T. Loyall and Hall & Buford, for the plaintiff in error.

Thos. W. Ozlin and R. S. Weaver, Jr., for the defendant in error.

HOLT, J., delivered the opinion of the court.

The plaintiff was injured in a crossing accident and for that injury has recovered a judgment for $5,000.00, which judgment is now before us on a writ of error.

This accident occurred east of Victoria and west of Kenbridge. The highway along which the plaintiff traveled crossed the railroad at an angle of about fifty degrees, which angle of approach, roughly speaking, was held for about two hundred feet, after which the county road bore to the east, and for somewhere about six hundred feet its approach was around thirty degrees, when it bore still further to the east and was more nearly parallel to the railroad's right of way. Somewhere where about 1,600 or 1,700 feet east of the crossing is a small body of woods. Between these woods and the crossing there is an open field, and a traveler on the highway can see a train at any point within this space of seventeen hundred feet, the only obstructions to the view being a barn and one dwelling house on a side road six hundred feet east of the crossing and three small piles of crossties on the right of way seventy feet east of the crossing and twenty feet south of the railroad. A passenger train, made up of two engines and three cars, came from the east as did the automobile in which plaintiff sa...