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

• Decision Date: 16 March 1916
• Citation: 88 S.E. 305
• Parties: SOUTHERN RY. CO. v. VAUGHAN'S ADM'R.
• Court: Virginia Supreme Court

88 S.E. 305

SOUTHERN RY. CO.

v.VAUGHAN'S ADM'R.

Supreme Court of Appeals of Virginia.

March 16, 1916.

Rehearing Denied April 3, 1916.

Error to Circuit Court, Campbell County.

Action by Vaughan's Administrator against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Instructions were given in the circuit court as follows:

A. The court instructs the jury that if they believe from the evidence that the engineer blew the whistle and rung the bell as required by law and as stated in another instruction in this case, then they should find for the defendant. But the jury are further instructed that even if they believe from the evidence that the whistle was not blown and the bell was not sounded as required by law, it does not necessarily follow from the mere omission to do these things that the jury should find for the plaintiff.

(1) The court instructs the jury that the duty of a railroad company, when its train is approaching a highway crossing, and of a traveler on the highway, when approaching the same crossing, are reciprocal. It is the duty of the railroad company to exercise ordinary and reasonable care to give notice of the approach of its train to the crossing; and it is the duty of the traveler on the highway and about to pass over the crossing to exercise the same degree of care, by caution in his movements and by the use of his senses of seeing and hearing, to ascertain if a train is approaching dangerously near to the crossing, so as to avoid injury to himself from such train. And the failure on the part of either to discharge its or his said duty would be negligence. Boyd v. So. Ry. Co., 115 Va. 11, 14, 78 S. E. 548, Ann. Cas. 1914D, 1017.

(2) The court further instructs the jury that it was the duty of the defendant company, and of its agents and servants who were in control of and operating its engine and train of cars, on approaching the highway crossing under consideration, to sharply sound the whistle of its said engine at least twice, at a distance of not less than 300 yards nor more than 600 yards from said crossing, and to ring the bell of said engine or sound said whistle continuously or alternately until the said engine reached said crossing; and a failure to discharge that duty would be negligence. Code, § 1294d, cl. 24; At & D. Ry. Co. v. Reiger, 95 Va. 419, 426, 427, 28 S. E. 590; Simons v. So. Ry. Co., 96 Va. 152, 155, 31 S. E. 7.

(3) The court further instructs the jury that, independently of the duty of the defendant and its agents and servants as set forth in instruction No. 2, it was the duty of the defendant company and of its said agents and servants to exercise ordinary care to give reasonable and timely warning to persons passing over the highway and approaching and about to pass over said crossing of the approach of its said engine and train of cars to said crossing, in order to warn persons on said highway and about to pass over said crossing of its approach, so as to enable them to avoid exposing themselves to injury from said engine and train; and a failure on the part of the defendant to discharge that duty would be negligence. So. Ry. Co. v. Bryant, 95 Va. 214, 28 S. E. 183.

(4) The court further instructs the jury that the negligence of the defendant in any particular cannot be presumed; but the burden rests upon the plaintiff to prove the negligence alleged in the declaration to the satisfaction of the jury, by a preponderance of the evidence, unless they should believe that such negligence appears from the evidence of the defendant in this case. Poca. Col. Co. v. Rukas, 104 Va. 281, 285, 51 S. E. 449.

(5) The court further instructs the jury that it was the duty of the decedent, Raymond W. Vaughan, on approaching the said crossing and before attempting to pass over the same, to exercise ordinary care and caution in his movements and to use his senses of seeing and hearing, to ascertain whether or not a train of the defendant was approaching the said crossing insufficiently close proximity thereto to endanger him while crossing over; and if he ascertained, or by the exercise of ordinary care could have ascertained, that it was in sufficiently close proximity to endanger him, it was his duty not. to undertake to cross over until the train had passed; and a failure to discharge these duties, or either of them, would be negligence. But negligence on his part in either respect cannot be presumed; and the burden rests upon the defendant to prove it to the satisfaction of the jury by a preponderance of the evidence, unless they should believe that such contributory negligence appears from the evidence of the plaintiff in this case. Poca. Col. Co. v. Rukas, 104 Va. 281, 285, 51 S. E. 449.

(5 1/2) The court instructs the jury that the duty of an automobile driver approaching tracks where there is restricted or obstructed vision to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty. And if the jury believe from the evidence in this case that Raymond W. Vaughan failed in this duty, then he was guilty of such contributory negligence as will prevent a recovory in this action.

(6) The court further instructs the jury that ordinary care, as expressed in the foregoing instructions, as applied to each, the decedent and the defendant, means such care and caution as an ordinarily prudent and reasonable person would have exercised under the same circumstances, conditions, and surroundings.

(7) If the jury believe from the evidence that the decedent, Raymond W. Vaughan, suffered injury and death from collision with defendant's engine or train, as charged in the declaration, and that said collision was caused by the negligent failure of the defendant, or of its agents and servants who were in charge of and operating said train, to give warning of its approach to said crossing, both by negligently failing to sharply sound the whistle and ring the bell, as is mentioned in instruction No. 2, and also by negligently failing to give any other reasonable and timely warning of the approach of said train to said crossing, as is mentioned in instruction No. 3, then they should find for the plaintiff, unless they shall further find from the evidence that the decedent, Raymond W. Vaughan, was guilty of negligence in undertaking to pass over said crossing at that time. But if the jury shall find from the evidence that the defendant and its said agents and servants wore not guilty of negligence in the respects, as mentioned above, or that the said decedent was guilty of contributory negligence in going upon the crossing at that time, either because he was guilty of negligence in failing to ascertain the dangerous approach of the train to said crossing, or otherwise, then they should find for the defendant.

(8) If the jury shall find that the plaintiff is entitled to recover in this case under the law and the evidence, then in ascertaining the damages they may consider:

First. The pecuniary loss sustained by the decedent's infant child, by his death, fixing the same at such sum as would be equal to the probable earnings of the said Raymond W. Vaughan, taking into consideration his age, business capacity, experience, and habits, health, energy, and perseverance, during what would probably have been his lifetime, if he had not been killed.

Second. By adding thereto compensation for the loss of his care, attention, and society to his infant child, but not to exceed $10,000 in all. Poca. Collieries Co. v. Rukas, 104 Va. 280, 2S5, 51 S. E. 449; Colonial Coal Co. v. Gass, 114 Va. 24, 28, 30, 75 S. E. 775.

(9) The court instructs the jury that a higher degree of caution is required, at a highway crossing, of both the traveler on the highway and of the railroad company, where the view is obstructed and the contour of the land is such as to render less audible the noises of the moving train, than if the view was not obstructed and the contour of the land was such as to render more audible the noises of a moving train; the degree of caution required on the part of both the traveler and the railroad company being in proportion to the danger from the existing conditions. And it is for the jury to determine from the evidence what were the facts in this case, and whether or not the decedent and the defendant, either or both, exercised the required degree of care under the circumstances. At Coast Line v. Grubbs, 113 Va. 214, 74 S. E. 144.

(10) The court instructs the jury that ordinary care does not require one absolutely to refrain from exposing himself to danger. It does require, however, such watchfulness and precaution to avoid coming in contact with danger as a person of ordinary prudence would use under like circumstances, in view of the danger to be avoided. Newport News Co. v. Bradford, 99 Va. 117, 37 S. E. 807.

The following instructions were refused in the circuit court:

(2) The court instructs the jury that it was the positive duty of Raymond W. Vaughan in crossing the railroad track to have avoided the accident which resulted in his death if he could have done so by the exercise of the utmost practicable care.

(3) The court further instructs the jury that under the circumstances of this case it was the duty of Raymond W. Vaughan, if necessary in order to avoid the collision, to have gotten out of the automobile himself and gone forward to the crossing and looked and listened for the train, or to have gotten Mrs. Perrow, the lady who was in the automobile with him, to have gotten out and gone forward to the crossing and looked and listened for the train. And if the jury believe from the evidence that by these means, or either of them, the accident would have been prevented, the jury...