Southern Railway v. Whetzel

• Decision Date: 12 January 1933
• Court: Virginia Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY v. SAMUEL G. WHETZEL, ADMINISTRATOR, ETC.

Page 796

159 Va. 796

SOUTHERN RAILWAY COMPANY v. SAMUEL G. WHETZEL, ADMINISTRATOR, ETC.

Supreme Court of Virginia, Richmond.

January 12, 1933.

Present, All the Justices.

1. CROSSING — Signals — Negative and Positive Testimony — Case at Bar. — The instant case arose out of a crossing accident. Plaintiff asserted that the statutory signals were not given by the train at the crossing. Witnesses for defendant railroad testified that the statutory signals were given. Three witnesses, who were standing, or walking slowly, upon a railroad bridge 1,900 feet north of the crossing, testified that they had an unobstructed view of the train and that before it reached the bridge it sounded the whistle but gave no further signal before reaching the crossing.

Held: That in view of this evidence, the rule that negative testimony has no probative value as against positive, affirmative evidence by credible witnesses was not applicable.

2. CROSSINGS — Signals — Proof of Injury and Failure to Give Signals — Verdict for Plaintiff. — In an action arising out of a crossing accident, proof of the failure to give the statutory signals, and proof of injury to the plaintiff, are not of themselves sufficient to support a verdict against the railroad.

3. CROSSINGS — Signals — Proof of Injury and Failure to Give Signals — Causal Connection. — When it is said by courts and textbooks that a causal connection must be shown between the breach of duty or act of negligence and the injury, nothing more can be meant than that the evidence must tend to establish such a relation between them, as, according to the ordinary experience of mankind, warrants the conclusion that the injury would not have happened had not the negligence occurred.

4. CROSSINGS — Signals — Proof of Injury and Failure to Give Signals — Verdict for Plaintiff — Presumption of Causal Connection. — No presumption of causal connection arises from proof of the failure to give the signals and proof of the injury. Proof alone of the injury and the failure to give the signals are not sufficient to support a recovery by the plaintiff in an action arising from a crossing accident.

5. CROSSINGS — Accident at Crossing — Failure to Give Signals — Driver of Automobile to Exercise Ordinary Care on Approaching Crossing — Case at Bar. — In the instant case a freight train running at thirty-five or forty miles an hour approached a crossing and failed to give the signals required by statute. The employees of the defendant company violated a criminal statute, Code of 1919, section 3960; but the driver of the automobile violated a common law duty to exercise ordinary care for his own safety and that of his passengers on approaching a known place of danger.

Held: That these facts convicted both the defendant company and the driver of the automobile of negligence.

6. JUDICIAL NOTICE — Signals at Crossings — Failure to Give Signals — Case at Bar. — It is a matter of common knowledge that the shrill blast of a locomotive whistle or the continued ringing of a large bell is more easily heard than the roar of an approaching train, and travelers possessed or average hearing usually heed such warnings. The statute is based upon this fact. In the instant case the evidence establishes that the occupants of the automobile were in a position to hear and heed the statutory signals if they had been given. According to the ordinary experience of mankind, the jury were warranted in the conclusion that the injury would not have occurred had the statutory signals been given.

7. CROSSINGS — Verdict for Plaintiff in an Action Arising out of a Crossing Accident — Reasonable Inference Deducible from the Evidence. — In an action arising out of a crossing accident the trial court approved a verdict for the plaintiff.

Held: That the plaintiff was entitled in the Supreme Court of Appeals to every reasonable inference fairly deducible from the evidence.

8. CROSSINGS — Signals — Causal Connection — Jury Question. — Whether or not the negligence of the railway company in failing to give the statutory signals was a contributing cause of the injury was a jury question.

9. CROSSINGS — Failure to Give Signals — Mitigation of Damages — Sections 3958 and 3959 of the Code of 1919. — Under sections 3958 and 3959 of the Code of 1919 contributory negligence does not bar recovery where statutory signals were not given but mitigates damages.

10. CROSSINGS — Failure to Give Statutory Signals — Contributory Negligence of Driver — Sections 3958 and 3959 of the Code of 1919. — Sections 3958 and 3959 of the Code of 1919 abolish the doctrine of contributory negligence on the part of the traveler in those cases where the operators of trains fail to give the statutory signals, and instead of excluding such a traveler from all recovery, as was the case under the former law, it allows him or his representative to recover; but as it did not seem just to place a traveler who had failed to exercise due care on the same footing with one who had exercised such care, the section allows the jury to consider the negligence of the traveler in mitigation of damages.

11. CROSSINGS — Failure to Give Signals — Contributory Negligence of Traveler — Section 3959 of the Code of 1919. — Notwithstanding section 3959 of the Code of 1919, plaintiff in an action for recovery for injuries suffered in a crossing accident, where the railroad failed to give the statutory signals, still has to prove three essentials before he can recover, namely, that the railroad company failed to give the signals, that this failure was the proximate cause of the collision, and the amount of damages. Section 3959 of the Code of 1919 incorporates a new element in the law in providing that the failure to exercise due care in approaching a crossing shall not bar recovery, but the failure may be considered in mitigation of damages.

12. CROSSINGS — Crossing Accident — Care to be Exercised by Guest in Automobile. — A guest in an automobile cannot place his safety entirely in the keeping of the driver, but must exercise due and reasonable care for his own protection and safety. This degree of care and caution is that which a reasonably prudent man would exercise under the same circumstances.

13. AUTOMOBILES — Crossing Accident — Care to Be Exercised by Guest in Automobile — Guest Seated on the Back Seat. — It is true that a passenger cannot blindly trust to his driver, but in the nature of things one on the back seat is not required to exercise that degree of vigilance which is demanded of the chauffeur.

14. AUTOMOBILES — Crossing Accident — Care to Be Exercised by Guest in Automobile — Automatic Signal Failing to Work — Case at Bar. — In the instant case arising out of an accident at a railroad crossing, there was evidence to show that automatic signals had been installed at the crossing and that they gave no warning of the approaching train.

Held: That this fact lessened the degree of care which a guest in the automobile was required to exercise for his own safety.

15. AUTOMOBILES — Signals — Gates, Gongs, or Other Devices — Failure of Devices to Work. — The erection of gates, gongs, or other devices at highway or street crossings to warn travelers of approaching trains does not excuse a traveler at such crossings from exercising ordinary care and caution, but the same degree of care and catuion is not required of the traveler, as if there was no such invitation.

16. CROSSINGS — Failure of Passenger in Automobile to Exercise Ordinary Care — Automatic Signals Failing to Work — Questions of Law and Fact — Case at Bar. — In the instant case plaintiff's intestate, a passenger in an automobile, was not charged with the same degree of care and caution which the driver must exercise in looking and listening for approaching trains; and while it was true that if he had looked and listened when the car reached some fifty feet of the point of impact with the train he could have seen the train, his view was obstructed to some extent by the curtains of the automobile. In addition, he had a right to place some reliance upon the statutory signals to warn him of the approaching train.

Held: That, under the circumstances, the contributory negligence of the passenger was a jury question.

17. CROSSINGS — Crossing Accident — Whether Negligence of Driver of Automobile Was the Sole Proximate Cause of the Collision — Whether Driver of Automobile Saw the Train — Case at Bar. — The instant case was an action for the death of plaintiff's intestate in a crossing accident. Plaintiff's intestate was a passenger in the car. If the driver of the car attempted to make the crossing with knowledge that the train was approaching, then the failure to give the statutory signals was not a contributing cause to the accident, and there was no liability upon the defendant company. If the driver looked he was bound to have seen the train, and in that case his negligence would be the sole proximate cause of the accident. If he did not look he was guilty of negligence, but such negligence, under section 3959 of the Code of 1919, did not bar recovery. There was no attempt to race with the train. The mere fact that the speed of a slowly moving car was slightly increased before reaching the tracks at a crossing was not sufficient to show that the operator had seen the approaching train.

Held: That the probable and reasonable inference to be drawn from all the facts and circumstances was that the driver did not look to see whether a train was approaching.

18. CROSSINGS — Accident at Crossing — Whether the Negligence of Driver of Automobile Was the Sole Cause of the Accident — Questions of Law and Fact. — In the instant case, an action for the death of a passenger in an automobile in a crossing accident, it was contended by the defendant that the contributory negligence of the driver was the sole proximate cause of the accident.

Held: That whether the driver's negligence was the sole cause of the accident was...