Va.N Ry. Co v. Green

• Decision Date: 15 June 1933
• Parties: VIRGINIAN RY. CO. v. GREEN.
• Court: Virginia Supreme Court

169 S.E. 570

VIRGINIAN RY. CO.

v.GREEN.

Supreme Court of Appeals of Virginia.

June 15, 1933.

Error to Circuit Court, Lunenburg County.

Action by B. M. Green against Virginian Railway Company. Judgment for plaintiff* and defendant brings error.

Reversed and rendered.

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

Thomas W. Ozlin, of Kenbridge, and Hall, Buford & Leftwich, of Norfolk, for plaintiff in error.

R. S. Weaver, Jr., of Victoria, and James S. Easley, of Halifax, for defendant in error.

HUDGINS, Justice.

This writ of error brings under review the incidents of the trial of a crossing accident which resulted in injury to the plaintiff, for which he recovered a verdict and judgment for $7,500. The chief assignment of error upon which the railway company rests its contention for reversal is the action of the court in refusing to set aside the verdict. This compels an analysis of the evidence.

On February 14, 1931, plaintiff, driving a 1929 model Ford truck, traveling west, was struck by a large Mallet engine pulling 137 loaded coal cars going east, at a highway grade crossing approximately one mile west of the town of Victoria. Some 2, 900 feet west of this public crossing a private road crosses defendant's right of way, referred to In the evidence as the Daniel Jones or Fowlkes crossing. The burden was upon plaintiff to show that the defendant company was negligent in failing to give the crossing signals required by statute. For this purpose he relies upon his own testimony and that of six other witnesses.

The testimony of three of these witnesses is entirely negative and has little, if any, probative value. The testimony of Mr. and Mrs. W. A. Stewart and their son, Eugene Stewart, who at the time of the accident lived just west of the highway crossing and within a few hundred yards of the whistle post on the right of way, is positive that the crossing signals were not given. All three testified that they heard the signals given for the Daniel Jones private crossing, that they saw the train as it passed the whistle post, and that no signals were sounded between that and the highway crossing. Eugene Stewart testified that he was within 50 yards of the track when the engine passed and he intended to board the train for the purpose of riding into Victoria; that he heard the crash and went with the parties who took the plaintiff from the scene of the accident to the hospital in Victoria; that on arriving in Victoria he was asked by several parties how the accident occurred and if the whistle was blown, to which he replied, "Hell, yes, it blowed and blowed a plenty."

It seems that W. A. Stewart was a former employee of the defendant company and several years prior to the accident had gone out on strike and had never been re-employed, and on account of this had more or less animosity against defendant.

It was established that the engineer on the train was H. L. Wright, who on approaching Victoria, where he and other members of the train crew lived, was in the habit of blowing his whistle in a peculiar manner, known as the "whippoorwill." Some twenty-five witnesses, besides the members of the crew, gave positive testimony that the crossing signals were given; three lived within 200 yards of the whistle post, saw the train and heard the signals sounded; four lived close to the Daniel Jones crossing, saw the train and heard the signals after the train had passed that point and before it reached the highway crossing; three were within a quarter of a mile east of the point of impact and heard the crossing signals before the engine reached the highway; one colored man, a former employee of defendant, was riding on the fourth car from the engine and saw the truck approaching the crossing and heard the signals. Mrs; C. R. Bowden, wife of the brake-man who testified that he was ringing the bell, knew that her husband was on the same crew with Engineer Wright, and as soon as she heard the "whippoorwdll" blow for the crossing began to prepare his supper. L. C. Croft was a motor mechanic working at a garage situated in the western part of the town of Victoria with whom Wright had left his automobile, with instructions to have it ready for him on his return from this run. Croft stated that he was expecting Wright to return on this train and was therefore listening for his blow, that he heard the signals and knew that Wright was approaching the crossing. Some...