Southern Ry. Co. v. Davis

• Decision Date: 21 March 1929
• Citation: 152 Va. 548
• Parties: SOUTHERN RAILWAY COMPANY AND CHESAPEAKE AND OHIO RAILWAY COMPANY v. ISAAC H. DAVIS, ADMINISTRATOR OF JULIUS A. DAVIS, DECEASED.
• Court: Virginia Supreme Court

Page 548

152 Va. 548

SOUTHERN RAILWAY COMPANY AND CHESAPEAKE AND OHIO RAILWAY COMPANY v. ISAAC H. DAVIS, ADMINISTRATOR OF JULIUS A. DAVIS, DECEASED.

Supreme Court of Virginia, Richmond.

March 21, 1929.

1. CROSSINGS — Contributory Negligence — Signals — Sections 3958 and 3959 of the Code of 1919 not Applicable to Crossing Accidents in an Incorporated Town — Case at Bar. — Section 3958 of the Code of 1919, requiring specific signals from railway locomotives on approaching highway crossings, and section 3959 of the Code of 1919, providing that the contributory negligence of one injured at such a crossing shall not bar a recovery but only be considered in mitigation of damages, do not apply where the accident took place at a crossing situated within an incorporated town, as in the instant case. Therefore, if plaintiff's intestate in the instant case, the driver of a truck killed at a grade crossing, was guilty of negligence which proximately contributed to his death, there could be no recovery, unless the last clear chance doctrine applied.

2. APPEAL AND ERROR — Conflicting Evidence — Crossing Accident — Conflicts Must be Substantial. — In the instant case defendant in error relied upon the doctrine that the verdict of a jury upon conflicting evidence is conclusive. As a matter of fact, however, the record disclosed very few substantial conflicts. There were a number of eye-witnesses of the tragedy, some of whom heard signals which others did not hear, while some observed facts which others did not perceive. Such differences are natural, and do not present a case of conflicting evidence.

3. CROSSINGS — Duty to Look and Listen — Evidence Held to Establish that Plaintiff's Decedent Did Not Look and Listen — Case at Bar. — The instant case was an action for the death of plaintiff's decedent in a crossing accident. None of the witnesses in the case testified that the deceased, the driver of a truck, ever looked in the direction of the rapidly approaching train which killed him, but there was testimony that he appeared to be looking in the opposite direction from which a freight train was also approaching. If deceased had looked he could have seen the train approaching in time to have stopped before the accident.

Held: That it must be assumed that if deceased had looked he would have stopped, as this could have been easily and promptly done within a few feet.

4. CROSSINGS — Duty to Look and Listen — Obstructions — Testimony of Witness in Conflict with Physical Facts. — In the instant case, a crossing accident, a witness testified that a driver on the highway had to be right on the track before he could see an approaching train. The physical facts demonstrated that this evidence was inaccurate.

Held: That the statements of this witness, if he intended to deny the physical facts, otherwise so clearly demonstrated, could not be credited.

5. CROSSINGS — Failure to Give Signals — Concurring Negligence of Plaintiff — Case at Bar. — In the instant case plaintiff's counsel relied upon the alleged failure of a railroad train to give the statutory signals upon approaching a crossing as justifying the jury in concluding that the defendant railroad was guilty of negligence.

Held: That this conclusion, even if justified by the weight of the evidence, did not relieve the deceased of the consequences of his own independent or concurring negligence in failing to look, or in driving upon the track from a place of safety.

6. CROSSINGS — Contributory Negligence — Concurring Negligence of Plaintiff and Defendant — Duty of Party Approaching Crossing to Exercise Ordinary Care — Signals — Track a Proclamation of Danger. — While it is the duty of a railroad company to give notice of the approach of its train to a crossing, the reciprocal duty is imposed upon a person about to go on its track to exercise ordinary care and caution, whether it be a highway crossing or a licensed way. The track itself is a proclamation of danger. It is his duty before going upon it to use his eyes and ears. If he fails to look and listen, as his duty requires him, and attempts to cross the track in front of a moving train and is injured by it, his own act, his own negligence, so contributes to his injury that he is not entitled to recover, unless the railroad company after it discovered, or ought to have discovered, his peril, might have avoided the injury by the exercise of ordinary care.

7. CROSSINGS — Contributory Negligence — Failure to Look and Listen — Negligence Per Se. — The failure of a traveler to look and listen before going upon a railroad track, when there is an unobstructed view, and his going upon the track from a safe place immediately in front of a moving train which is then so close as to make a collision inevitable, is negligence per se, where his view was unobstructed.

8. CROSSINGS — Silent Gong — Invitation to Cross. — The fact that the gong at a crossing is silent has never been held to relieve a traveler upon the highway from the duty of looking and listening for approaching trains, when from a safe position such looking and listening would suffice to warn him of his danger, and enable him to avoid injury.

9. CROSSINGS — Contributory Negligence — Obstructions — Sudden Peril — Questions of Law and Fact. — Where the view of a traveler approaching a crossing is obstructed and the traveler is exposed to sudden peril, without fault on his part, and must make a quick decision, the question of his contributory negligence should be submitted to the jury.

10. CROSSINGS — Last Clear Chance — Doctrine Held Inapplicable where Servants of Railroad had no Notice of the Purpose of the Driver of an Automobile to Cross the Track — Case at Bar. — In the instant case, an action for the death of plaintiff's decedent in a crossing accident, there was not a scintilla of evidence to indicate that the servants of defendant railroad company in charge of the train had any notice whatever of the purpose of decedent, the driver of an automobile, to cross the track until the collision was so imminent, that it was too late to save him. Both the engine driver and fireman testified that everything was done which could have been done to stop the train as soon as they were aware of decedent's danger, and there was nothing in the testimony offered by the plaintiff to contradict their testimony, while the physical facts corroborated it.

Held: That the last clear chance doctrine had no application to the instant case.

Error to a judgment of the Circuit Court of Fairfax county in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Barbour, Keith, McCandlish & Garnett, for the plaintiffs in error.

Walter Tansill Oliver and Wilson M. Farr, for the defendant in error.

PRENTIS, C.J., delivered the opinion of the court.

On the afternoon of May 7, 1921, Julius A. Davis, while driving a Ford truck, was killed on the grade crossing of the Southern Railway Company, at Clifton station, by a passenger train of the Chesapeake and Ohio Railway Company. His administrator sued both companies, and the trial resulted in a verdict and judgment for the plaintiff for $3,000.00, of which the defendants are here complaining.

As the location of the crossing is in the incorporated town of Clifton, it is conceded that Code, sections 3958, requiring specific signals from railway locomotives on approaching highway crossings, and 3959, providing that the contributory negligence on one injured at such a crossing shall not bar a recovery but only be considered in mitigation of damages, do not apply in this case. If the plaintiff's intestate, the driver of the truck, was guilty of negligence which proximately contributed to his death, there can be no recovery, unless the last clear chance doctrine applies.

There is much in the briefs filed for the administrator, as to conflicts in the testimony, and their determination by the jury. As a matter of fact, however, the record discloses very few substantial conflicts. There were a number of eye-witnesses of the tragedy, some of whom heard signals which others did not hear, while some observed facts which others did not perceive. Such differences are natural and grow out of the fact that some people are more alert and see more than others, some have better memories, and some attribute more importance to certain circumstances than others who may have observed but forgotten the same facts.

3, 4 This is a fair summary of the undoubted facts which determine the case: The decedent lived on his father's farm about two miles away from the station which he frequented, and he was familiar with the crossing at Clifton at which he met his death. On the morning of the day of the occurrence he had driven the truck to Clifton about ten o'clock in the morning, and parked it in proximity to the railway station, about midway between the station and the highway, where it remained until he attempted to drive it across the railway track. As he approached the highway, before...