Railway Company v. Haley

• Decision Date: 19 March 1931
• Citation: 156 Va. 350
• Parties: THE VIRGINIAN RAILWAY COMPANY v. JAMES T. HALEY.
• Court: Virginia Supreme Court

Page 350

156 Va. 350

THE VIRGINIAN RAILWAY COMPANY v. JAMES T. HALEY.

Supreme Court of Virginia, Richmond.

March 19, 1931.

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

1. EVIDENCE — Positive and Negative Evidence — Testimony of a Witness that he did not Hear a Sound at a Particular Time and Place. — Where a witness testifies that he did not hear a particular sound at a particular time and place, if the evidence shows that he had a good opportunity to hear it, and that the circumstances were such that it is probable that he would have heard it, if it had occurred, or that his attention was in some way drawn to the matter controverted, his testimony is positive, rather than negative, or what may be called quasipositive testimony. In such a case the relative opportunities of the witness who testifies that he did not hear and the witness who testifies that he did hear, the degree of the probability that the former would have seen or heard, if it had occurred, and the intensity with which his attention was drawn to the controverted matter, go to the weight of his testimony rather than to the character of his testimony.

2. CROSSINGS — Failure to Give Signals — Evidence — Positive and Negative Evidence — Case at Bar. — In the instant case the question at issue was whether a railroad failed to give the statutory signal at a crossing. The testimony of some of the witnesses for the plaintiff that they did not hear the crossing signal was purely negative, and in the case of other witnesses testifying that they did not hear the signal there were facts and circumstances which might properly have been considered by the jury as adversely affecting the weight of the testimony as evidence tending to show that the crossing signals were not given. But it cannot be properly said that the testimony of any of these witnesses was so distinctly negative in character as to amount in law to no evidence that the crossing signals were not duly given by whistle and bell.

3. CROSSINGS — Failure to Give Signals — Evidence — Positive and Negative Evidence — Failure to Give Signals Question for Jury — Case at Bar. — In the instant case the question at issue was whether defendant railroad failed to give the statutory signals at a crossing. A number of witnesses who had an opportunity to hear the signals testified that they did not hear them. On the other hand, a number of witnesses testified that they heard the signals.

Held: That the evidence presented a proper case for the submission of the question to the jury, and that the court did not err in refusing to set aside the verdict for plaintiff on the ground that there was no evidence to support a finding that defendant failed to give the crossing signals.

4. CROSSINGS — Failure to Give Signals — Verdict of Jury Concludes Question — Case at Bar. — In the instant case, an action against a railroad, plaintiff alleged that defendant failed to give the statutory crossing warning required by section 3958 of the Code of 1919. The jury found a verdict for the plaintiff.

Held: That the verdict of the jury concluded in favor of the plaintiff the question of whether the statutory warnings were given.

5. NEGLENCE — Proximate and Remote Cause — Necessity that Negligence Must be the Proximate Cause of the Damage. — The rule applicable to all actions for the recovery of damages for an act of negligence is that there can be no recovery unless the negligence of the defendant, or that for which the defendant in law must answer, to some degree, or in some way, contributed proximately, and not remotely, to causing the damage for which recovery is sought.

6. NEGLIGENCE — Proximate and Remote Cause — Breach of Statutory Duty. — The rule that the negligence of the defendant must be the proximate cause of the damage for which recovery is sought, is equally applicable where a recovery is sought for the breach of a statutory duty, unless the statute, expressly or by necessary implication, provides that a recovery may be had where damage occurs coincident with or following the violation of the statute though there be no causal connection between the violation of the statute and the damage which occurred.

7. CROSSINGS — Failure to Give Statutory Warning — Negligence Per Se. — The failure to give the signals required by section 3958 of the Code of 1919 within the distances and in the manner prescribed by that section, is negligence per se, even though other signals or warnings may have been given, or the signals prescribed by the statute may have been given at a greater or less distance than that prescribed.

8. CROSSINGS — Failure to Give Statutory Signals — Proximate Cause of Injury. — In order to support an action for an injury predicated upon the failure of the railroad company to give the signals prescribed by the statute, the failure to give the signals must have been a proximate cause of the injury. That is, the failure to give the signals must have proximately, and not remotely, contributed to some degree or in some way to causing the injury; or to state the same proposition of law negatively, if the failure to give the signals was not a cause contributing proximately to the injury there can be no recovery.

9. CROSSINGS — Failure to Give Statutory Signals — Prior to Section 3959 of the Code of 1919. — Prior to section 3959 of the Code of 1919, in an action predicated upon the failure to give the statutory signals, in order to recover it was necessary that plaintiff should have been free from negligence.

10. CROSSINGS — Failure to Give Statutory Signals — Since the Enactment of Section 3959 of the Code of 1919 — Contributory Negligence of Plaintiff not a Bar to an Action but Considered in Mitigation of Damages. — Since the enactment of section 3959 of the Code of 1919, where the signals required by the statute (section 3958 of the Code of 1919) have not been given, there may be a recovery for any injury to a person crossing the tracks at that crossing to the causing of which injury the failure to give the signals proximately contributed to any degree or in any way, even though the negligence of the plaintiff, or of some other person, may also have been a cause contributing to the injury; but if the negligence of the plaintiff contributed to causing the injury, it may and must be considered in mitigation of damages.

11. CROSSINGS — Failure to Give Statutory Signals — Effect of Section 3959 of the Code of 1919 on the Rule Requiring Causal Connection. — The enactment of section 3959 of the Code of 1919 has not in any degree abrogated or modified the rule of law requiring a causal connection between the failure to give the signals and the injury; has not changed the rules of evidence, or the nature or amount of evidence, required to establish such causal connection; and has not established, or given rise to, any new presumption of causal connection between the failure to give the signals and the injury. Nor does section 3959 of the Code of 1919 provide that the proof of the failure to give the signals and of injury following shall be prima facie evidence that the injury was caused by the failure to give the signals.

12. CROSSINGS — Failure to Give Statutory Signals — Plaintiff's Negligence Contributing to the Accident — Primary Negligence of Plaintiff. — When the evidence fails to establish that the failure to give the signals contributed to the accident, but shows that the plaintiff's negligence caused or contributed to causing the accident, then, strictly speaking, the evidence proves primary negligence on the part of the plaintiff, rather than contributory negligence on his part. In such a case the primary reason for denying a recovery is that the evidence fails to establish a causal connection between the failure to give the signals and the injury.

13. CROSSINGS — Failure to Give Statutory Signals — Presumption of Causal Connection — Essential Elements to be Established by Plaintiff. — In an action against a railroad predicated on the failure to give statutory signals at a crossing, the establishment of a causal connection between the failure to give the signals and the injury is as essential an element, and as much a part of the plaintiff's case, as the establishment of the fact that the defendant failed to give the statutory signals, or that the plaintiff was injured. All three elements must be established by the evidence. A causal connection between the failure to give the signals and the injury will no more be presumed, than that the defendant failed to give the signals or that the plaintiff was injured. Proof of the failure to give the prescribed signals and proof of injury and nothing more are not of themselves sufficient to support a recovery.

14. CROSSINGS — Failure to Give Statutory Signals — Proximate and Remote Cause — Evidence Must Affirmatively Establish Causal Connection. — In an action predicated on the failure to give the statutory signals at a crossing, it is not sufficient to support a recovery that the evidence does not show affirmatively that there was no causal connection between them. The evidence must affirmatively establish that there was a causal connection between the failure to give the signals and the injury which follows in point of time.

15. CROSSINGS — Failure to Give Statutory Signals — Proximate and Remote Cause — Evidence Affirmatively Showing that the Giving of the Signals would not have Prevented the Accident. — When the evidence affirmatively shows that giving the prescribed signals could not, or would not, have prevented the accident, it proves affirmatively that there was no causal relation between the failure to give the signals and the injury. In such cases it is clear there can be no recovery.

16. CROSSINGS — Failure to Give Statutory Signals — Burden of Proof — Proximate and Remote Cause — Evidence Showing a Mere Possibility that had the Signals been given the Accident would not have Happened. — In an action predicated on...