T. E. Ritter Corp. v. Rose
| Citation | 200 Va. 736,107 S.E.2d 479 |
| Decision Date | 16 March 1959 |
| Docket Number | Nos. 4891,4892,s. 4891 |
| Parties | T. E. RITTER CORPORATION v. LIVY H. ROSE, ET AL. SEABOARD AIR LINE RAILROAD v. LIVY H. ROSE, ET AL. Record |
| Court | Supreme Court of Virginia |
Spencer Gill (Rixey & Rixey, on brief), for plaintiff in error. T. E. Ritter Corporation.
E. L. Ryan, Jr. and John A. MacKenzie (White, Ryan & Reynolds; MacKenzie & Carr, on briefs), for C. H. Lawson, Inc., and Seaboard Air Line Railroad.
John A. MacKenzie (MacKenzie & Carr, on brief), for plaintiff in error, Seaboard Air Line Railroad.
E. L. Ryan, Jr. (Spencer Gill; White, Ryan & Reynolds; Rixey & Rixey, on briefs), for C. H. Lawson, Inc., and T. E. Ritter Corporation.
No briefs were filed on behalf of Livy H. Rose, defendant in error.
These two appeals arise out of one proceeding. The same set of circumstances and the same parties are involved in each.
On April 28, 1956, about 9:30 a.m., a Seaboard Air Line Railroad passenger train collided with an earth mover or scraper at a point where a new highway was under construction over the tracks and right-of-way of the Railroad. The train consisted of seven coaches, including an express car, and was pulled by a diesel locomotive. The earth mover, owned by C. H. Lawson, Incorporated, a subcontractor of T. E. Ritter, Incorporated, was operated by its employee, R. E. Layman. The mover and its equipment weighed 45,000 pounds and had a carrying capacity of 19 tons of material. It was struck on its right side and almost completely demolished. Livy H. Rose, an employee of the Railway Express Agency, Incorporated, was riding in the express car at the time of the collision. The express car was derailed and, as a result, Rose was badly injured.
Rose sued T. E. Ritter Corporation, C. H. Lawson, Incorporated, and the Seaboard Air Line Railroad, alleging that his injuries were caused by the negligence of each and all of the defendants. The jury returned a verdict of $15,000 against all three defendants, and judgment was entered accordingly. The defendants will be hereinafter respectively referred to as Ritter, Lawson, and Railroad.
Ritter and Railroad sought and obtained writs of error. Lawson did not appeal. Ritter contended that the earth moving machine was being operated by Lawson, an independent contractor, and it had nothing to do with the operation; and that Railroad operated its train in excess of lawful speed and without proper lookout. Railroad claims that the evidence fails to show that it was guilty of any negligence which was the proximate cause of the accident. Lawson, in its briefs, asks us to hold both Ritter and Railroad guilty of negligence.
The scene of the accident is in the City of Portsmouth. The new highway and cross-over were being constructed under a contract with the State Highway Department, Ritter being the general contractor for the entire project. Ritter had, on December 20, 1955, sublet the grading and sub-soil work on the project to Lawson, to be performed according to the plans, specifications and directions of the general contract. Lawson agreed to furnish all supervision, labor and materials, including equipment and incidentals required in the work sublet to it.
The weather at the time of the accident was clear, and the railroad tracks were straight for a mile west of the point of collision. The legal limit of speed for the train in the zone where the accident occurred was 45 miles per hour. There was no flagman on duty where the crossing was being constructed.
Work on the cross-over had been suspended during the winter; but a few days prior to the date of the accident, Lawson had resumed the grading of the street running over the right-of-way of Railroad. Its earth mover was being driven across the tracks from north to south when the collision occurred. The train was proceeding eastwardly.
The State not having title to the land occupied by the railroad tracks, Ritter procured a license from Railroad to construct and maintain a road crossing its property and tracks. Under this agreement, dated August 31, 1955, which was in effect at the time of the accident, Ritter, as licensee, contracted, in part, as follows:
'4. Licensee will, at all times, exercise, and will require its agents and employees using the crossing to exercise, extraordinary vigilance and care to avoid injury to persons or damage to property from equipment operated over the tracks of Railroad, and will not do nor permit anything to be done to or on said crossing to endanger the property or delay the equipment of Railroad.
'Licensee will use over the crossing only pneumatic-tired equipment so as to prevent damage to Railroad's right of way and tracks. Licensee will notify Railroad when it expects to move heavy equipment over the crossing and Railroad will, at Licensee's expense, provide a flagman at the crossing during such periods, and Licensee will reimburse Railroad for the expense thus incurred.
'5. Licensee hereby assumes all risk of loss, cost, injury or damage growing out of the condition, maintenance or use of the crossing or the exercise or attempted exercise of the license herein granted. And Licensee will further at all times indemnify and save Railroad harmless from any and all claims and costs that may arise or be made for injury, death, loss or damage resulting to the Railroad's employees or property, or to other persons or their property, including the agents and employees of Licensee, by reason of the existence of this crossing.'
Railroad wrote Ritter on December 13, 1955, that it had observed large quantities of dirt left on its tracks, and that tractors having lugs and cleats were being used rather than the pneumatic-tired equipment provided in the agreement. It requested Ritter to adhere to the agreement. On December 19, Ritter replied that the work was being done by its subcontractor, and that it had notified Lawson 'in regards to the above matter.' It further advised Railroad that the work was being shut down until March 1, and after that it would see that the agreement was carried out.
On January 17, 1956, Railroad asked Ritter to advise it how long a time was needed to complete the work after operations were resumed around the first of March. Ritter replied on January 19, 1956, that it did not expect to use the crossing until March 1, and should finish the job and use of the crossing by July 15, 1956. No notice, however was given Railroad that work had been resumed at the crossing, nor was there any request at any time that a flagman be provided at the crossing when heavy equipment was being moved over it.
H. F. Kelly, engineer of the train, called as an adverse witness by the plaintiff, testified that as it approached the 45-mile zone in which the accident occurred, he reduced the speed of the train below 45 miles per hour, according to the train's speedometer, and applied his brakes preparing to enter a lower speed limit zone beyond; that when he was 200 or 300 feet from the point of the accident, the earth mover drove on the tracks; and that he immediately applied his emergency brakes, which operated properly, but he was unable to stop the train. He further said that before he saw the earth mover he had turned on his whistle and set the automatic bell, and both were in operation at the time of the collision. The speed of the train was between 35 and 40 miles per hour when it struck the earth mover.
H. L. Brown, a fireman of the train, corroborated the testimony of Engineer Kelly as to speed, application of brakes, the blowing of the whistle and the ringing of the bell. He said the first time he saw the earth...
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