Southern Ry. Co v. Adm&r

• Decision Date: 16 January 1919
• Citation: 98 S.E. 31
• Court: Virginia Supreme Court
• Parties: SOUTHERN RY. CO. v. ABEE'S ADM'R.

98 S.E. 31

SOUTHERN RY. CO.

v.ABEE'S ADM'R.

Supreme Court of Appeals of Virginia.

Jan. 16, 1919.

Error to Circuit Court, Pittsylvania County.

Action by Loyd Abee's administrator against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Leigh & Leigh, of Danville, for plaintiff in error.

B. H. Custer, of Danville, for defendant in error.

KELLY, J. On the 15th day of January, 1916, Loyd Abee was killed at a crossing by a shifting engine owned and operated by the Southern Railway Company. His adminis-trator brought this action alleging that his death was due to the negligence of the defendant company. There was a verdict for the plaintiff, and thereupon the trial court rendered the judgment under review.

Stated briefly, and in general terms, the negligence complained of was that the engine approached the crossing at a reckless and dangerous rate of speed, in the dark, without lights, and without sounding the whistle or ringing the bell.

As to the most material facts and circumstances bearing upon these charges of negligence, the evidence is in glaring conflict; but the conflict has been conclusively settled for this court by the verdict of the jury. We must look at the case, so far as the facts are concerned, in the light of such of the evidence as tended materially to support the verdict; and, as thus portrayed, it is substantially as follows: The plaintiff's decedent, Loyd Abee, was a young man slightly over 20 years of age, of good habits, strong, active, and intelligent. He was physically well-developed, except that his hearing and power of speech were so limited that he could only utter a few familiar words, like digital numbers and family names, and could only hear loud sounds, like a nearby shout, a gunshot, a train bell or whistle. The accident occurred shortly before daylight, just outside the limits of the city of Danville. Abee lived in Danville, and was on his way to the Boatright furniture factory where he was regularly employed. In going there, like many other persons, he approached the railroad crossing through an alley extending from Stokes street to the gate entering the factory premises. Stokes street runs parallel with the railroad, and is about 160 feet west of the right of way. The crossing in question is between Stokes street and the factory, and the alley along which Abee was traveling crosses the railroad about at right angles. The railroad, which runs north and south at that point, is double-tracked, and trains pass there at frequent intervals, both day and night. Abee came east on the alley and had reached the crossing just as a south-bound passenger train was passing on the track next to him. Shortly after it passed, he crossed the first track, and had started across the second, when he was struck by the tender of a north-bound shifting engine, commonly known as a "shifter, " which was moving backwards over the crossing. The conflict of evidence already adverted to is particularly marked as to: (a) The distance between the rear of the passenger train and the crossing when Abee crossed the south-bound track, (b) the rate of speed at which the shifter was moving, (c) the presence of signal lights thereon, (d) the distance from the crossing at which the shifter could have been seen by a man looking for it at that point, and (e) the sounding of the bell and whistle. These are vital and controlling facts, and the jury accepted the plaintiff's theory upon evidence which tended to show that, when Abee attempted to cross the track, the rear of the passenger train was some distance-beyond the crossing, that the shifter was running downgrade at a speed of perhaps 30 miles or more an hour, without any lights, making very little noise by its movement, sounding no whistle or bell, and that in the darkness then prevailing the shifter itself was not visible until within a few feet of the crossing..

Taking up the assignments of error in the order of their importance, the first is that the court ought to have granted the defendant's motion for a new trial on the ground that the verdict was contrary to the law and the evidence. We are of opinion that the motion was properly overruled. The negligence of the defendant company, viewing the evidence as upon a demurrer thereto, must be conceded. The Boatright alley, though owned by the furniture company, was in constant use by numbers of persons, employes of that company and others, who crossed the tracks there every day. The engineer and conductor in charge of the shifter both knew that the crossing was used every day by large numbers of persons at the very hour when the accident occurred; and there was evidence tending to show that the defendant company had recognized it as a highway crossing by the erection there of a "whistle post." It was clearly such a crossing as to fall within the letter and spirit of section 1291d(24) of the Code, requiring the sounding of the whistle and the ringing of the bell by all locomotive engines as a warning of their approach to highway crossings (N. & W. R. Co. v. Bristol, 116 Va. 955-962, 83 S. E. 421); and the case is not at all within the influence of the decision of this court in Washington, etc., Co. v. Fisher, 121 Va. 229, 92 S. E. 809, relied upon by counsel for the defendant company. That it was negligence to run the engine at a high rate of speed over this crossing without lights and without giving timely warning of its approach (all of which the jury may have properly believed was true from the evidence) is a proposition too plain for argument

Was the plaintiff's decedent guilty of contributory negligence? This question we think was likewise concluded by the verdict. We are unable to say, as a matter of law, that he was guilty of any negligence at all. That depends upon the same conflicting evidence which envelops the question of the defendant's primary negligence. There is no middle ground in the case. If, as contended by the railroad company, Abee crossed the south-bound track immediately after the passenger train had passed, and, without looking, stepped directly in front of an engine equipped with lights, giving the statutorysignals, and running at a cautious rate of speed, then there was no negligence in the case at all except his own. On the other hand, if, as the plaintiff claims, the passenger train had passed some distance beyond the crossing, and if the engine was...