Southern Ry. Co v. Whetzel

• Decision Date: 12 January 1933
• Parties: SOUTHERN RY. CO. v. WHETZEL.
• Court: Virginia Supreme Court

167 S.E. 427

SOUTHERN RY. CO.

v.WHETZEL.

Supreme Court of Appeals of Virginia.

Jan. 12, 1933.

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HOLT, EPES, and BROWNING, JJ., dissenting.

Error to Circuit Court, Prince William County.

Action by Samuel G. Whetzel, administrator of the estate of Grant G. Whetzel, deceased, against the Southern Railway Company. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS. GREGORY, BROWNING, and CHINN, JJ.

Thos. B. Gay, of Richmond, and John S. Barbour and F. S. McCandlish, both of Fairfax, for plaintiff in error.

Robert A. Hutchison and Thos. E. Didlake, both of Manassas, for defendant in error.

HUDGINS, J.

Grant G. Whetzel, a boy fourteen years of age, was killed when an automobile in which he was riding as a passenger was struck at a grade crossing by an engine of the Southern Railway Company. His administrator recovered a verdict and judgment in the trial court.

The declaration alleged two acts of negligence: (1) Failure to sound the statutory signals. (2) Improper installation and maintenance of the automatic electric signals at the grade crossing. The defendant pleaded the general issue and contributory negligence.

The first error assigned is to the action of the court in refusing to strike the plaintiff's evidence and later to set aside the verdict. Under this assignment the defendant con tends: (1) That the evidence tending to show that the statutory signals were not given is entirely negative; (2) that even if these signals were not given, the plaintiff failed to establish a causal connection between such failure and the collision; (3) that the contributory negligence of Grant Whetzel and the driver of the car was the sole proximate cause of the accident; (4) that there was not sufficient evidence to establish negligence in the operation of the automatic signals. We will discuss these contentions in the order named.

1. Sunday afternoon, March 10, 1929, Grant Whetzel, his brother Frank, Hampton Kerlin, and Amos Smith were riding in a Chevrolet touring car, with the curtains down, and as they attempted to pass over a grade crossing at Bristow, Prince William county, the automobile was struck by a south-bound Southern Railway freight train, resulting in the death of the four boys. At this point there are two main line tracks and a spur. The highway, extending east and west, crosses the right of way almost at right angles. When the automobile, traveling west, neared the crossing, Grant was on the side farthest from the approaching train.

Employees of the railway company in charge of the train, and others, testified that the statutory signals were given. There is a railroad bridge spanning Broad Run 1, 900 feet north of the crossing. Three witnesses, who were standing (or walking slowly) north of this bridge and about 100 yards from the right of way, testified that they had an unobstructed view of the train from the bridge to the station, and observed it as it crossed the bridge and approached the station; that before it reached the bridge it sounded its whistle but gave no further signal before reaching the crossing. The testimony of two of these witnesses is positive. Virgil Petty testified as follows:

"Q. What signals were given by the engine after it passed the bridge going to Bristow?

"A. I didn't hear any.

"Q. Had you withdrawn your attention from the train or were you still watching the train?

"A. Still watching the train."

On cross-examination he stated:

"Q. You want the jury to understand there was no bell ringing or you just don't remember having heard the bell ring?

"A. There wasn't any ringing.

"Q. How much fuss was that train making?

"A. It wasn't making so terrible much. "Q. Running along easy? "A. It wasn't kicking up so very much fuss."

Another witness, E. W. Shumaker, Jr., testified:

"Q. What signals did the train give, if any, after the engine had passed the bridge between there and Bristow?

"A. It didn't give any."

On cross-examination he testified:

"Q. If you were so uncertain about the time, how is it now you can be so certain about blowing whistles?

"A. I heard it. I heard it blow this side of the bridge but I didn't hear it blow the other side. I would have heard it if it had Mowed."

In view of this evidence, the rule that negative testimony has no probative value as against positive, affirmative evidence by credible witnesses is not applicable, and the decision in this case on this point is not influenced by the cases of Norfolk & W. By. Co. v. Eley, 157 Va. 568, 162 S. E. 3; Cooper v. So. Ry. Co., 153 Va. 93, 149 S. E. 444; White v. So. Ry. Co., 151 Va. 302, 144 S. E. 424; and other like cases cited by defendant.

2. The second contention of defendant is that even if the signals were not given, the plaintiff failed to establish causal connection between such failure and the accident.

The act requiring certain signals to be given by trainmen approaching a highway crossing at grade first appeared in the Acts of 1893-94, pp. 827, 828. This act was construed in Atlantic & D. Ry. Co. v. Reiger, 95 Va. 418, 28 S. E. 599, 593. In the opinion in that case Judge Buchanan said:

"The object of the statute, as stated in its title, was to protect human life; and, as the injury to the plaintiff was especially such a one as the sounding of the whistle was intended to prevent, some presumption arises that the injury was caused by the neglect, unless the plaintiff's own fault was manifest. Cooley, Torts (2d Ed.) 799; Shear. & R. Neg. § 469; 3 Elliott, R. R. § 1155. But such negligence of the defendant does not entitle the plaintiff to recover, unless it was the cause of his injury. Whether it was or not was to be determined from all the facts and circumstances of the case. Although the whistle did not blow as required, yet if the plaintiff knew, or by the exercise of ordinary care ought to have known, that the locomotive was approaching, in time to have avoided the injury, he was not entitled to recover." (Italics supplied.)

The above opinion was published December 2, 1897. On June 23, 1898, in Simons' Adm'r v. So. Ry. Co., 96 Va. 152, 31 S. E. 7, 8, Judge Keith, in construing the same act, said:

"It is true that proof of the failure on the part of the railway company to give the signal required by statute and proof of injury to the plaintiff are not, of themselves, sufficient to support a verdict against the company. On the other hand, when it is said by courts and text-books 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 ordinary experience of mankind, warrants the conclusion that the injury would not have happened had not the negligence occurred."

It appears that the later case overruled, certainly by implication, that part of the opinion in the Reiger Case which held that some presumption of causal connection arose from the failure to give the signals and the injury. So far as our search reveals, the statement in the Simons Case remained without question the settled law on the point in this state until publication of the first opinion in Southern Ry. Co. v. Johnson, 143 S. E. 887, 890, where it is stated that, when it is established that signals were not given and injury followed, "a presumption arises that the injury was caused by the neglect." On a rehearing this language was stricken from the opinion. See 151 Va. 345, 146 S. E. 363.

A similar expression is found in Norfolk & W. Ry. Co. v. Mace, 151 Va. 458, 145 S. E. 362. This is explained in Virginian Ry. Co. v. Haley, 156 Va. 350, 381, 157 S. E. 776, 785. In the latter case it was definitely held that, "proof of the failure to give the prescribed signals and proof of injury, and nothing more, are not of themselves sufficient to support a recovery." The discussion on the point in that case concludes by quoting the rule announced by Judge Keith in the Simons Case, which is undoubtedly the law in this state. See Atlantic Coast Line R. Co. v. Ford, 53 S. Ct. 249, 77 L. Ed. ----, decided January 9, 1933.

The defendant contends that this case is controlled by Norfolk & W. Ry. Co. v. Wellons Adm'r, 155 Va. 218, 154 S. E. 575, 577. That case did not involve the comparative negligence statutes. Code, §§ 3958, 3959. It is distinctly stated in the opinion that, "Without discussing the evidence, we will content ourselves with saying that train No. 3 [the one involved in the collision] gave the statutory signals of approach." The negligence there relied upon was the fact that without the consent of the State Corporation Commission the railway company had substituted other stationary signals for gates which had formerly been in use at the crossing, and under the facts, of course, the common-law rule applied and it was held that the contributory negligence of the passenger in the truck barred recovery.

In Chesapeake & O. Ry. Co. v. Barlow, 155 Va. 863, 156 S. E. 397, the plaintiff himself testified that he approached the crossing with his car under complete control and that he looked "good" and continued to look for approaching trains; there was practically nothing to obstruct his view. If this evidence wastrue, he was guilty of no negligence; yet the engine, in plain sight, with the headlight burning, was bearing down upon him and struck him before he cleared the crossing.

Under the circumstances, we held that he was bound to have seen the approaching train; that the blowing of the whistle and the ringing of the bell would have given him no further information; and hence that there was no causal connection between the failure to give such signals and the collision.

In Norfolk & W. Ry. Co. v. Eley, 157 Va. 568, 162 S. E. 3, it was held that the evidence did not show that the railway company failed to give the statutory signal, and until such negligence is established of course there can be no recovery under the...