Smith's Adm'r v. Norfolk & W. Ry. Co

• Decision Date: 16 January 1908
• Citation: 107 Va. 725,60 S.E. 56
• Court: Virginia Supreme Court
• Parties: SMITH'S ADM'R. v. NORFOLK & W. RY. CO.

60 S.E. 56

107 Va. 725

SMITH'S ADM'R.

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Jan. 16, 1908.

1. Railroads — Collisions at Crossings — Negligence—Contributory Negligence.

Negligence of a railroad company in regard to a train approaching a highway crossing does not relieve a traveler on the highway from the duty of exercising diligent care for his own safety; the duty of the traveler being as imperative as that of the railroad company.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1022, 1071-1074.]

2. Same—Care Required of Persons Near Tracks.

A traveler on a highway must, before crossing a railroad, use his senses of sight and hearing, and his failure to do so is, as a general rule, negligence; and, since the track is a proclamation of danger to him, he must make the acts of looking and listening reasonably effective.

[Ed. Note.—For eases in point, see Cent. Dig. vol. 41, Railroads, §§ 1043-1056.]

3. Same.

Where a traveler is warned, or by the exercise of care commensurate with the known danger would be warned, of the near approach of a railroad train, it is his duty to keep off the track until the train has passed, and to go on the track under such circumstances is negligence defeating a recovery for injuries inflicted in the resulting collision.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1026.]

4. Same—Proximate Cause.

Negligence of a railroad company in regard to a train approaching a highway crossing does not authorize a recovery for the death of a traveler struck by a train at the crossing, unless the negligence was the sole proximate cause of the injury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1090-1095.]

5. Same—Contributory Negligence — Reliance on Precautions on Railroad's Part.

A traveler at a railroad crossing has the right to presume that the railroad company will obey the statutes and sound the signals requir ed thereby, and may rely on this presumption, but such reliance does not relieve him from care on his part, and one approaching a railroad track must not approach at such a rate of speed that, when he reaches a point where he can see or hear a train, it is too late to stop and protect himself from injury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1071-1074.]

6. Negligence—Contributory Negligence.

The rule that a person in an emergency is not required to exercise the prudence required of prudent persons under ordinary circumstances applies only where such person has been placed in the situation of danger by the negligence of another not united with his own negligence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 99, 100.]

7. Railroads — Accidents at Highway Crossings—Contributory Negligence.

In an action against a railroad company for the death of a traveler struck by a train at a highway crossing, evidence examined, and held to show that decedent was guilty of contributory negligence defeating a recovery.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1144-1149.]

Error to Circuit Court, Franklin County.

Action by J. J. Smith's administrator against the Norfolk & Western Railway Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

S. A. Anderson, L. W. Anderson, and W. L. Lee, for plaintiff in error.

Dillard & Lee and Wm. Gordon Robertson, for defendant in error.

HARRISON, J. This action was brought by the administrator of J. J. Smith, deceased, to recover of the defendant railway company damages for its alleged negligence in causing the death of the plaintiff's intestate. There was a demurrer to the plaintiff's evidence, which the circuit court sustained. This judgment we are asked to review and reverse.

The plaintiff's intestate was killed at a public road crossing, in the county of Franklin, at a point a little south of Prillaman's Siding. The crossing is shown to be a dangerous one; the view of the railroad, to one approaching the track from the north, being cut off on the traveler's right by a bluff until he is within a short distance of the track. The public road descends until within a short distance of the track, and then rises until the track Is reached.

The intestate was driving a wagon drawn by a pair of mules, and had almost cleared the track when he was struck by a regularly scheduled freight train, which was behind time. This train ran regularly from Roanoke in a southerly direction, stopping at Prillaman's Siding when flagged. The intestate is shown to have been an experienced and careful driver, familiar with the crossing and the running of trains at that point. He had been hauling over the crossing for some time; the stave factory at Prillaman's Siding being his point of delivery. On the morning of the accident the deceased was at Prillaman's Siding In conversation with two others a few moments before he was killed. It is but a few hundred yards on the arc of a circle from "Prillaman's" to the crossing, the public road running this distance around a bluff which cuts off a view of the railroad, the traveler, however, being at no time on the route more than 130 feet distant from the railroad. When a man driving a two-horse wagon reaches a point in the public road from which, looking up the track to his right, he can see the same for a distance of 70 yards, the heads of his team would be about 3 feet from the edge of the cross-ties; going a little further, so that the driver could see as much as 180 yards up the track, the heads of the team would be "right on the rail." The distance traveled by the mules from the point where they first emerged from the embankment to the point at which they were when the wagon was struck by the train was 52 feet.

The only eyewitnesses of the accident were the engineer and the fireman. Their uncontradicted evidence is that the deceased approached the crossing standing up, whip in one hand and lines in the other, with the team in a run or gallop. The evidence shows that these employes of the railroad saw the deceased as soon as it was possible for them to do so, that the emergency brakes were immediately applied, and everything possible done to avert the accident, but without avail, and that for some distance before reaching the crossing it was downgrade, and the train running 25 to 35 miles per hour. A number of witnesses testify to hearing the whistle blow for Prillaman's Siding and the noise of the approaching train. The demurrer to the evidence, however, admits that the crossing whistle was not blown, and the act approved January 18, 1904 (Va. Code 1904, § 1294d), was not complied with. This act had been in force but 25 days when the accident happened, on the morning of February 13, 1904; and provides that, where the railroad crosses upon the same level any highway or crossing, the bell shall be rung or whistle sounded continuously or alternately for a distance of not less than 300 yards until the engine has reached such highway crossing.

The negligence of the defendant company in approaching the crossing must be accepted as an established fact; but this negligence does...