Southern Ry. Co v. Johnson

• Decision Date: 14 June 1928
• Citation: 143 S.E. 887
• Parties: SOUTHERN RY. CO. v. JOHNSON.
• Court: Virginia Supreme Court

143 S.E. 887

SOUTHERN RY. CO.

v.JOHNSON.

Supreme Court of Appeals of Virginia.

June 14, 1928.

Error to Circuit Court, Nansemond County.

Action by India V. Johnson, administratrix c. t. a. of William Tilden Johnson, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Thos. B. Gay, of Richmond, William Leigh Williams, of Norfolk, and Jas. H. Corbitt, of Suffolk, for plaintiff in error.

William M. Crumpler, M. Anderson Maxey, and M. Erskine Watkins, all of Suffolk, for defendant in error.

CHICHESTER, J. On the 8th day of February, 1927, India V. Johnson, administratrix c. t. a. of Wm. Tilden Johnson, brought action in the circuit court of Nansemond county against the Southern Railway Company for damages for the death of her husband, Wm. Tilden Johnson, who was killed on December 22, 1924, at Wilroy, where the state highway, running from the city of Suffolk to the city of Norfolk, intersects with the tracks of the Southern Railway Company, when theautomobile in which Johnson was driving collided with the defendant company's train. Upon the trial of the case the verdict of the jury was for the plaintiff in the sum of $8,-000. The court declined to set the verdict aside upon motion of the defendant company and entered judgment on the verdict.

Stating them practically from the viewpoint of a demurrer to the evidence, because of the verdict of the jury finding for the plaintiff, the following is a fair statement of the facts:

Johnson was traveling alone in a closed Star automobile along the highway from the city of Suffolk to the city of Norfolk, approximately between 7 and 8 o'clock p. m., on the evening of December 22, 1924; it then being dark. The crossing at Wilroy is guarded by a flagman or watchman at the point of crossing. The east line of the highway and the south line of the right of way of the railway company form an obtuse angle; the view of defendant's tracks to the east of the highway being obstructed by the watch house for the use of the flagman, located on the east side of the highway and the south side of the company's right of way, and also by a covered station platform on the east. There was evidence that the view of the defendant's tracks to the east of the highway was also, to a considerable extent, obstructed by two buildings situated on the east side of the highway as well as by certain woodlands to the rear of these buildings.

The evidence (with photographs) also shows that there is a curve in the concrete road leading from Suffolk to the crossing. There is also a curve in the tracks of defendant company at a point to the east of, and about 152 steps distant from, the crossing. At the time deceased approached the crossing, a passenger train of the defendant company was proceeding at a speed of about 48 miles per hour toward the crossing also. There is evidence to the effect that in coming around the curve referred to, and on account of the curve, the headlights from the engine projected through the woods at an acute angle to the tracks and toward the opposite side of the crossing from which Johnson was approaching, and did not light the crossing. Johnson's automobile and the train came into collision, as stated, at the crossing; Johnson receiving mortal injuries, from which he died the following day.

Defendant was charged with negligence for its alleged failure, through its watchman, to warn deceased of the approach of the company's train and because of its alleged failure to give the warning signals as prescribed by section 3958 of the Code of 1919.¹

The evidence showed that Johnson apparently made no effort to stop, and collided with the train at the rear part of the tender with such force as to break some of the connections.

There was a conflict of the evidence on the question of whether the watchman was on duty at the time of the accident, and there is a decided conflict upon the question as to whether the statutory crossing signals were given. There was, however, positive testimony that the engine whistle did not blow and that the bell on the engine did not ring.

In view of the verdict of the jury, upon these conflicts in the evidence, we must take it as established that the statutory crossing signals were not given and that the watchman was absent from his post of duty. It was practically admitted in the argument and established by the evidence that the plaintiff was guilty of contributory negligence. So we have a case here involving the application of section 3959 of the Code to the facts above narrated.²

It is assigned as error:

"That the verdict is contrary to the law and the evidence and without evidence to support it, and is excessive, and because the jury did not diminish the damages in proportion to the contributory negligence of the plaintiff, and because of the errors in granting and refusing instructions, in the admission and rejection of evidence, and because the argument of counsel for the plaintiff improperly appealed to the sympathy and prejudice of the jury."

The first assignment of error, viz., That the verdict is contrary to the law and evidence and without evidence to support it, involves consideration of the following questions:

(1) Whether the negligence of the plaintiff was the sole proximate cause of the accident, as a matter of law, or whether this was a question for the jury.

(2) Was there any proof of causal relation between the failure to give statutory crossing signals and the accident?

(3) To what extent the jury could consider the alleged negligence of the Southern Railway in failing to have the watchman on duty at the time of the accident.

1 and 2 will be considered together. Counsel for the railway company, in their petition for a writ of error, state that this case presents to this court for the first time this proposition:

"Can a man approaching a railroad track in full and plain view of the same, driving an ordinary automobile, which, as a matter of common knowledge, is known to be capable of stopping in a few feet, drive into the side of a train, and subject the railroad company to a suit for damages? If this is so, then it is perfectly clear that a man could close his eyes to what this court has repeatedly called 'a proclamation of danger, ' and recover for the consequence of his conduct if he is able to produce a witness or witnesses who will testify that the statutory crossing signals were not given, or that if given were not heard by them."

The last line of the question propounded, "or if given were not heard by them, " has no application to the facts of this case, because there was evidence that the signals were not given, and the jury's verdict establishes this as a fact, which is binding upon this court upon this writ of error.

In addition, the question is incomplete, in that it does not state whether there was any causal relation between the failure to give the statutory signals and the accident. If the failure to give the signals in any way contributed to the accident, then, however grossly negligent the traveler was, he is entitled, under section 3959, to recover, subject to mitigation of his damages in proportion to his negligence. If there was no causal relation between the failure to give the signals and the accident, and this must of necessity, in nearly all cases, be a jury question, then of course the negligence of the traveler becomes the sole proximate cause of his injury and he is not entitled to recover. If there is any harshness in this rule, the remedy must be sought at the hands of the Legislature and not at the hands of the courts.

We cannot say in the instant case, in view of the evidence, as a matter of law, that there was no causal relation between the failure to give the statutory signals and the accident, and hence it follows that we cannot say that the deceased's negligence was the sole proximate cause of his injury and death.

Of course, the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the statutory signals were not given and that an accident followed. Once she has proven these, and the jury has established that she has in this case, a presumption arises that the injury was caused by the neglect. This presumption, as are all other presumptions, is rebuttable by the physical facts and circumstances surrounding the accident, or by positive evidence, and the question as to whether it has been rebutted is usually one for the jury, as it was in the instant case, because there was evidence to support either contention, as will appear later.

We are referred to several cases, notably Gregory v. S. A. L, Ry. Co., 142 Va. 750, 128 S. E. 272; Norfolk Southern R. R. Co. v. Ranks, 141 Va. 715, 126 S. E. 662; and Ether-idge v. Norfolk Southern R. Co., 143 Va. 789, 129 S. E., 680; in which it is contended that the Special Court of Appeals in effect has held that the burden of proof is upon the plaintiff to show by a preponderance of the evidence, not only that there was a failure to give the statutory signals, but that he must also follow this up by a preponderance of the proof that the failure caused the injury.

These cases were decided on the facts as they appeared in the records, and we doubt not rightly decided; but this court has never committed itself to the proposition that, having proven by a preponderance of the evidence the failure to give the statutory signals, a plaintiff must then proceed to prove that the failure caused the injury. It has, for many years, been held to the contrary. In Atlantic & D. Ry. Co. v. Reiger, 95 Va. at page 426, 28 S. E. 593, Judge Buchanan, speaking for the court, said:

"If the defendant failed to sound the whistle of its locomotive in the manner set out in the instruction, it was guilty of negligence, for the statute (act approved March 5, 1894;. Acts 1893-1894, pp. 827, 828) is imperative that the whistle shall be so sounded. The object of the statute, as stated in its title, was to protect human...