Southern Ry. Co v. Bryant's Adm'r

• Decision Date: 23 September 1897
• Citation: 95 Va. 212,28 S.E. 183
• Parties: SOUTHERN RY. CO. v. BRYANT'S ADM'R.
• Court: Virginia Supreme Court

28 S.E. 183

95 Va. 212

SOUTHERN RY. CO.

v.BRYANT'S ADM'R.

Supreme Court of Appeals of Virginia.

Sept. 23, 1897.

Injury at Crossing —Evidence— Contributory Negligence—Burden of Proof—Failure to Stop and Look—Review on Appeal.

1. In an action to recover for injury at a railroad crossing, the testimony of witnesses who deny that a whistle was sounded by the approaching train is entitled to as much weight as that of witnesses who testify that such signal was given, where the former were, for special reasons, listening for the whistle, and could have heard it if sounded.

2. It was not contributory negligence per se to drive slowly upon a railroad track at a public crossing, without stopping to look and listen, where the view of the track from the highway was obstructed, and no signal was given to announce the approach of a train.

3. The burden is upon a defendant who relies on contributory negligence to defeat a recovery to prove the same, unless such negligence is disclosed by plaintiff's evidence, or may be fairly inferred from the circumstances.

4. The supreme court will not disturb a verdict unless the evidence is plainly insufficient to sustain it.

Error to circuit court, Amherst county.

Action by R. Fletcher Bryant's administrator against the Southern Railway Company to recover damages for the death of intestate. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Chas. M. Blackford, for plaintiff in error.

Caskie & Coleman, for defendant in error.

RIELY, J. R. Fletcher Bryant was struck and killed on December 10, 1895, by a passenger train of the Southern Railway Company while crossing Its track on the public highway, and this suit was brought to recover from the railway company damages on account of his death. The jury, on the trial, rendered a verdict in favor of the plaintiff for $6,125, and the court entered judgment In accordance with the verdict.

The right of the plaintiff to recover was founded upon the alleged negligence of the railway company in not giving timely notice of the approach of its train to the crossing, so as to enable travelers upon the highway to guard themselves against injury, whereby, in consequence of such neglect, the plaintiff's intestate, who was driving his wagon along the highway, and was obliged to cross the railroad track where it intersects the highway, lost his life.

It is well-settled law, Independent of any statute, that it is the duty of a railroad company to give reasonable and timely warning of the approach of its train to the crossing of a public highway. 2 Wood, R. R. 1510; Johnson's Adm'r v. Railway Co., 91 Va. 177, 21 S. E. 238. The public have the same right to use the highway as the railroad company has to use its track; but the law, conceding, from the necessity of the case, the preference and right of way to the railway train, requires that It shall duly warn travelers upon the highway of its approach to the crossing, so that they may protect themselves and their property from a collision, and consequent injury.

The legislature of Virginia has emphasized this duty of the railroad company for the protection of human life by requiring that a bell and steam whistle shall be placed on each locomotive engine operated on any railway in this state, and that "the whistle shall be at least twice sharply sounded, not less than three hundred yards before a highway crossing is reached"; and also in making the company "liable for all damages which shall be sustained by any person by reason of such neglect." Acts 1893-94, p. 827.

The negligence charged against the railway company was the failure to give timely notice of the approach of its train to the crossing, and this it was incumbent on the plaintiff to prove, for, unless the company was negligent, there could be no recovery against it for the death of the deceased. Therefore the first question for consideration is, did it neglect to give the warning the law requires? Was there & failure to sound the whistle as prescribed by the statute? In determining the question of negligence, we have to consider the testimony upon the principles of a demurrer to the evidence. Code, § 3484. These principles are too familiar, and of too frequent application, to need to be here stated. Johnson's Adm'r v. Railway Co., supra.

The trainmen (engineer, fireman, and conductor) all testified on the trial that the whistle was sounded at the whistling post established for the crossing by the railway company, which is about 600 yards from the crossing, and the bell rung, though the engineer was proved to have testified at the coroner's inquest held shortly after the accident that he blew the whistle for the crossing on nearing it, and just then saw the heads of the decedent's horses at the crossing. The defendant introduced two other witnesses, who stated very positively and circumstantially that they heard the whistle give the usual signals for the crossing. On the other hand, the plaintiff examined six witnesses (John W. Johnson, Howell Watts, Sherman Smith, Charles Tinsley, Burwell Watson, and Carrington Rose) in respect to this fact, all of whom, with abundant opportunity to hear the whistle if it had been sounded, swore that they did not hear it blow for the crossing.

It is consonant with reason and human experience that the positive testimony of a single witness, whose credibility Is unimpeached, that he saw or heard a particular thing at a particular time and place, ought ordinarily to outweigh that of a number of equally credible witnesses, who, with the same opportunities, testify that they did not see nor hear it The particular thing might have taken place, and yet, from inattention, they may not have seen or heard it; or, though conscious of seeing or hearing it at the moment of its occurrence, may have afterwards forgotten it from lapse of time or defective memory. In such case the evidence of the one witness is positive, while that of the many is merely negative. But where a witness who denies a fact in question had as good opportunity to see or hear it as he who affirms it, and his attention, because of special circumstances, was equally drawn to the matter controverted, the general rule that the witness who affirms a fact is to be believed rather than he who denies it does not hold good. The denial of the one in such case constitutes positive evidence, as well as the affirmance of the other, and produces a conflict of testimony.

We will now examine the testimony of the witnesses for the plaintiff in respect to the blowing of the whistle for the crossing, and see whether it is merely of a negative character, or whether it creates a conflict with that of the defendant.

The testimony of the boy Carrington Rose was simply that he did not hear the whistle. He mentioned no circumstance to show that he was listening for it, or that there was anything to direct his attention specially to it His evidence upon this point was merely negative, and may be left out of consideration.

But this was not true as to the testimony of the plaintiff's other witnesses who testified in respect to this matter. Johnson and Watts passed over the crossing with their teams only a few minutes ahead of Bryant. Johnson was driving his own team, Smith was driving that of Watts, and the latter was walking. As they approached the crossing, Watts went in front of the teams to the track, to ascertain whether a train was approaching. Not seeing or hearing any train, the teams were driven on across the track and along the highway, which, soon after leaving the crossing, turns, and runs nearly parallel with the railroad track in the direction that the train came, and within a short distance of the track. They were familiar with the running of the train; were aware that it was the time, or a little past the time, for it to come along; and were on the lookout for it. All three testified that it rushed by them without sounding its whistle, without giving any warning of its approach to the crossing. This fact was impressed upon them in the most unmistakable manner. Johnson stated that he was listening for the train, because one of the horses he was driving was very scary, had run off once before, and came very near killing him; that he was not over twice the length of the court room from the railroad track when the train ran by, and nearer to the whistling post than to the...