Southern Ry. Co v. Jones' Adm'r

• Decision Date: 16 March 1916
• Citation: 88 S.E. 178
• Parties: SOUTHERN RY. CO. v. JONES' ADM'R.
• Court: Virginia Supreme Court

88 S.E. 178

SOUTHERN RY. CO.

v.JONES' ADM'R.

Supreme Court of Appeals of Virginia.

March 16, 1916.

Error to Circuit Court of City of Richmond.

Action by Joseph Jones, administrator of Harry Jones, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Eppa Hunton, Jr., and Thos. B. Gay, both of Richmond, for plaintiff in error.

R. H. Talley and C. V. Meredith, both of Richmond, for defendant in error.

KEITH, P. This action was brought by the administrator of Harry Jones to recover damages for the death of his decedent, alleged to have been caused by the wrongful act of the Southern Railway Company. The defendant demurred to the evidence, and judgment was rendered for the plaintiff upon the verdict of the jury, and the case is before us upon a writ of error.

Joseph Jones, the administrator of his brother, Harry Jones, was driving a one-horse wagon westwardly along Williamsburg avenue, the wagon having a top, but with the curtains raised, and upon the seat beside him was his brother, Harry. The defendant's railway crosses Williamsburg avenue at grade, and an ordinance of the city of Richmond required gates to be established at this point, to be lowered upon the approach of a train. At the time of the happening of the accident the gates were raised. There was no watchman, and no bell was rung, whistle sounded, or other warning given of the approach of the train. It cannot, therefore, be questioned that the railway company was guilty of negligence. This, indeed, is admitted, and its defense rests upon the contributory negligence of the defendant in error's decedent.

The train was moving at the rate of about 4 miles an hour. The horse drawing the wagon was, according to the testimony of the plaintiff, walking. In response to a question as to whether he was driving fast or slow, the plaintiff said:

"I was driving in a good walk, you understand, as I always go; I don't never drive fast, but in a good nice walk, coming up the road."

And his own account of the occurrence, given in a narrative form, is as follows:

"I drove on across and got struck. I had the right of way. I didn't look up; never looked at all. Just drove on out Williamsburg avenue. The gates were up, and I thought it was a safe passage. I didn't listen for the train, and didn't have no business listening for it. The gates were up. I did not stop, and I did not look, and I did not listen, because the gates were up and it was a clear road there."

[2-5j The negligence of the driver is not to be inputed to a passenger, but it is the duty of the traveler to use ordinary care for his own safety. The railroad track is to him, as to others, a signal of danger, and his fail ure to exercise reasonable precaution for his own protection is contributory negligence and bars a recovery. The evidence in this case shows that if the driver or the traveler, either or both, had exercised the most ordinary caution, the accident could never have happened; for, without undertaking to reduce the distance at which the train could have been seen to feet, there is no room to doubt that it could have been seen in time to have prevented a collision. If they had looked, they could have seen; if they had listened, they could have heard; for it appears by the evidence of a witness—introduced it is true by the defendant, but as to whose statement there is no contradiction—that seeing the train approach from under the bridge, and they seeming not to have seen it, the witness "hollered" to the driver, who paid no heed to the warning.

Atlantic Coast Line R. Co. v. Grubbs, 113 Va. 214, 74 S. E. 144, correctly states the law as applied to the facts of that case; the court saying that upon a demurrer to the evidence by the defendant, if the jury might have found for the plaintiff, the court must so find, and that open gates at a railroad crossing do not relieve a traveler of the duty of exercising care for his own safety. But it goes further and says, and it is so stated in the third syllabus, that the raising of the gates is a circumstance which justifies the traveler in starting across the railroad, and whether, under the circumstances, the traveler exercised due care for his own safety, is a question for the jury. This statement is based upon an expression in the opinion (113 Va. at page 222, 74 S. E. at page 147), where the learned judge who wrote the opinion was discussing the case of Rangeley v. Southern Ry. Co., 95 Va. 715, 30 S. E. 386, and other authorities upon that point, that:

While "open gates at a railroad crossing are no guaranty of safety, meaning, of course, that open gates do not relieve a traveler of a highway crossing the railroad of the duty to exercise ordinary care for his own safety; but those cases recognize that the raising of the gates is a circumstance which justifies the traveler of the highway in starting to cross the railroad, and further recognize that whether one injured in such circumstances exercised due care for his own safety is a question for the jury."

We think the word "justifies" was inadvertently...