Southern Ry. Co. v. Johnson

• Decision Date: 14 June 1928
• Parties: SOUTHERN RAILWAY COMPANY v. INDIA V. JOHNSON, ADMINISTRATRIX, C.T.A., OF WILLIAM TILDEN JOHNSON.
• Court: Virginia Supreme Court

Page 345

151 Va. 345

SOUTHERN RAILWAY COMPANY v. INDIA V. JOHNSON, ADMINISTRATRIX, C.T.A., OF WILLIAM TILDEN JOHNSON.

Supreme Court of Virginia, Wytheville.

June 14, 1928

Amended January 9, 1929.

1. APPEAL AND ERROR — Conflicts in Evidence — Conclusiveness of Verdict of Jury — Absence of Watchman at Crossing and Failure to Give Signals — Case at Bar. — The instant case was an action by an administratrix for the death of her decedent who was killed in a collision between an automobile which he was driving and a train of the defendant at a crossing. There was a conflict in the evidence on the question of whether the watchman of defendant was on duty at the time of the accident, and on the question as to whether the statutory crossing signals were given. There was, however, positive evidence that the engine whistle did not blow and that the bell on the engine did not ring.

Held: That in view of the verdict of the jury in favor of the plaintiff, upon these conflicts in the evidence, it must be taken as established that the statutory crossing signals were not given and that the watchman was absent from his post of duty.

2. APPEAL AND ERROR — Conflicts in Evidence — Conclusiveness of Verdict of Jury — Failure to Give Crossing Signals — Case at Bar. — In the instant case, an action for the death of the driver of an automobile in a crossing accident, there was evidence that the statutory signals were not given, although upon this point the evidence was conflicting.

Held: That the jury's verdict for plaintiff established as a fact that the signals were not given, and is binding upon the Supreme Court of Appeals upon a writ of error.

3. CROSSINGS — Failure to Give Signals — Proximate Cause of Accident — Contributory Negligence of Driver — Section 3959 of the Code of 1919 — Case at Bar. — In an action for the death of the driver of an automobile in a crossing accident, if the failure of defendant to give the statutory signals in any way contributed to the accident, then, however grossly negligent the driver of the automobile was, he is entitled, under section 3959 of the Code of 1919, to recover, subject to mitigation of his damages in proportion to his negligence.

4. CROSSINGS — Failure to Give Signals — Proximate Cause of Accident — Question for Jury — Case at Bar. — In an action for the death of the driver of an automobile killed in a collision at a crossing, 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.

5. CROSSINGS — Failure to Give Signals — Proximate Cause of Accident — Question for Jury — Case at Bar. — In an action for the death of the driver of an automobile killed in a collision at a crossing, in view of the evidence, it could not be said 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 it could not be said that the deceased's negligence was the sole proximate cause of his injury and death.

6. CROSSINGS — Accident at Crossing — Failure to Give Signals — Presumptions and Burden of Proof — Presumption Arising from Failure to Give Signals — Questions of Law and Fact — Case at Bar. — The instant case was an action by an administratrix for the death of her decedent in a collision between the automobile which he was driving and the train of defendant. The burden of proof was upon the plaintiff to prove by a preponderance of the evidence that the statutory signals were not given and that an accident followed. But it was not necessary to consider the question of what presumptions arise from a failure to give statutory signals because there was ample evidence of causal relation between the alleged failure to give the signals and the accident which followed to support the jury's verdict for plaintiff.

7. CROSSINGS — Failure to Give Statutory Signals — Causal Relation between the Accident and the Failure to Give the Signals — Evidence Sufficient to Sustain Verdict for Plaintiff — Case at Bar. — In the instant case, an action for death of plaintiff's testate in a crossing accident, there were many fair inferences from the evidence (amounting to proof), which the jury had a right to draw, that, if the signals had been given, the collision would not have occurred. The jury could infer from the physical conditions that the approach of the train could not be seen or heard from the position occupied by the deceased, in the absence of some signal, until too late to avoid the collision. Plaintiff's decedent was driving at a moderate rate of speed, and there was no evidence tending to support the contention that he attempted to beat the train to the crossing. Deceased had a right to rely to a certain extent upon signals, the watchman, "stop" sign, and the whistle and engine bell. There was positive evidence that no signals were given.

Held: That a verdict for plaintiff could not be disturbed.

8. CROSSINGS — Failure to Give Signals — Presumptions and Burden of Proof. — The instant case was an action by plaintiff for the death of her decedent in a crossing accident. There was a conflict in the evidence as to whether the railroad had given the statutory crossing signals. The jury found for the plaintiff, which meant that the statutory signals were not given, and that the failure to give them contributed to the collision resulting in the death of plaintiff's decedent, and that the negligence of deceased was not the sole proximate cause of the accident.

Held: That as the Supreme Court of Appeals must consider the evidence practically as upon a demurrer thereto, if the jury was properly instructed, that court could not disturb their verdict.

9. APPEAL AND ERROR — Conflicting Evidence — Conclusiveness of Verdict of Jury. — Where there are conflicts in the evidence on which reasonably fairminded men might differ as to the proper conclusion of fact to be drawn from the evidence, the verdict of the jury is final and conclusive and both the trial court and the appellate court are powerless to disturb it.

10. CROSSINGS — Failure of Watchman to be at Post — Failure to Give Statutory Signals — Contributory Negligence of Plaintiff — Comparative Negligence — Case at Bar. — In an action for the death of plaintiff's decedent in a crossing accident, if the sole negligence of the railroad relied on had been the failure of the watchman to be at the crossing to stop travelers upon the approach of trains, there could have been no recovery by plaintiff, for the reason that there is no provision for apportionment of negligence in such a case and the deceased's contributory negligence would have barred any recovery. But this feature of negligence on the part of the railroad could be considered by the jury in apportioning negligence between the parties, where the railroad failed to give the statutory signals required by section 3958 of the Code of 1919.

11. CROSSINGS — Failure to Give Statutory Signals — Failure by Watchman to be at His Post — Comparative Negligence — Excessive Damages — Case at Bar. — In an action to recover for the death of plaintiff's decedent in a collision between an automobile which he was driving and the train of defendant, it appeared that the statutory crossing signals were not given by the railroad. The jury under section 3959 of the Code of 1919 found a verdict for $8,000.00 instead of a maximum verdict for $10,000.00.

Held: That the appellate court could not say that the jury's verdict was improper in not making a greater reduction in view of the fact that it appeared that the crossing watchman also was absent from his post of duty.

12. CROSSINGS — Failure to Give Statutory Signals — Failure of Watchman to be at His Post — Comparative Negligence — Verdict of Jury for $8,000.00 in Action for Death Sustained. — In the instant case, an action for death in a crossing accident, the jury found a verdict for $8,000.00 in favor of plaintiff. The jury evidently weighed the failure of the railway company to give the statutory signals and its failure to have its watchman on hand at the crossing against the failure by plaintiff to use all his senses as an ordinarily prudent man should have done, and in the comparison deducted $2,000.00 for the deceased's negligence.

Held: That it could not be said that the verdict of the jury was wrong in this respect.

13. NEGLIGENCE — Comparative Negligence — Comparative Negligence for Jury. — The issue of comparative negligence is one for the determination of the jury.

14. CROSSINGS — Failure to Give Statutory Signals — Instruction. — In an action against a railroad for the death of the driver of an automobile in a crossing accident, an instruction told the jury that if they believed the defendant failed to give the statutory signals required by section 3958 of the Code of 1919, and that such failure either caused or contributed to the accident, they should find for the plaintiff. It was objected to this instruction that there was nothing in the evidence from which the jury could affirmatively find that defendant's failure to give the signals caused or contributed to the injury.

Held: That there was no merit in the objection as there was ample evidence of causal relation.

15. CROSSINGS — Instructions — Failure to Give Signals — Causal Connection between Failure to Give Signals and Accident — Case at Bar. — The instant case was an action for death arising out of a collision at a crossing. There was a verdict for plaintiff. Defendant assigned as error the giving of an instruction in regard to the signals required under section 3958 of the Code of 1919; that it ignored the principle that failure to give the signals must have been the cause of or a contributory cause to the accident. There was no positive error in the instruction and the jury...