Rook v. Atl. Coast Line R. Co

• Decision Date: 14 January 1946
• Citation: 184 Va. 670,36 S.E.2d 559
• Court: Virginia Supreme Court
• Parties: ROOK. v. ATLANTIC COAST LINE R. CO.

36 S.E.2d 559

184 Va. 670

ROOK.

v.ATLANTIC COAST LINE R. CO.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Error to Circuit Court, Greensville County; J. J. Temple, Judge.

Action by Walter D. Rook, administrator of the estate of Johnnie Lee Rook, deceased, against the Atlantic Coast Line Railroad Company, for damages for the alleged negligent killing of Johnnie Lee Rook, deceased. To review a judgment for the defendant, after verdict for plaintiff was set aside the plaintiff brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

E. Peyton Turner, of Emporia, and William Old, of Chester, for plaintiff in error.

J. M. Townsend, of Petersburg, and E. Ennis Eanes, of Emporia, for defendant in error.

SPRATLEY, Justice.

This is another action arising out of that collision between a motor vehicle and a freight train, which we have this day dealt with in the case of Atlantic Coast Line R. Co. v. Clements, Va., 36 S.E.2d 553. These cases were tried before the same judge with different juries. The plaintiff's decedent, Johnnie Lee Rook, nine years of age, was killed in the collision. He was one of the passengers seated on the rear seat of the automobile driven by his father, John Rook.

The evidence of the witnesses in the two cases is essentially the same, except that of Clarence Rufus Clements, the seventeen-year old youth, who testified in each case as a witness for the plaintiff.

In the present case, Clarence testified that the driver of the car, John Rook, stopped for half a minute about 40 feet west of the Virginia Avenue crossing before going on the tracks. He, six times, declared, under both direct and cross-examination, that the driver then "looked both ways, " north and south, before he proceeded towards the tracks. At other times he repeated his statement in the trial of the former case that he did not see the driver look in any direction except the north.

Without objection from the plaintiff, the court, of its own motion, gave the jury an instruction, which read in part: "The Court instructs the jury that the uncontradicted evidence in this case is that Johnnie J. Rook, the driver of the automobile, in which the plaintiff's decedent was riding, stopped his said automobile before going upon the railroad tracks on which the defendant's train was approaching from the south and looked in both directions--north and south--before proceeding to drive upon said tracks; that the law is that a person who looks is presumed to see that which a lookout should reveal under the circumstances existing at the time and place of such lookout. * * *"

The jury found a verdict for the plaintiff and fixed the damages at $5,000. The trial court set aside the verdict on the ground that the negligence of the automobile driver was the sole proximate cause of the accident, and entered judgment for the defendant.

The plaintiff's sole assignment of error is that the conclusion of the trial court was not justified by the evidence. In connection therewith, but notwithstanding the verdict of the jury in his favor, he contends, in this court for the first time, that the trial court erred in telling the jury that the uncontradicted evidence showed that the driver of the automobile looked both north and south.

Plaintiff assented both as to the statement of fact and the principle of law contained in the instruction. His counsel not only failed to object, but when asked by the...