Va.N Ry. Co v. Haley

• Decision Date: 19 March 1931
• Citation: 157 S.E. 776
• Court: Virginia Supreme Court
• Parties: VIRGINIAN RY. CO. v. HALEY.

157 S.E. 776

VIRGINIAN RY. CO.

v.HALEY.

Supreme Court of Appeals of Virginia.

March 19, 1931.

Error to Circuit Court, Brunswick County.

Action by James T. Haley against the Virginia Railway Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before PRENTIS, C. J., and CAMPBELL, EPES, HUDGINS, and BROWNING, JJ.

W. H. T. Loyall, of Norfolk, and Hall & Buford, of Roanoke, for plaintiff in error.

George E. Allen, of Victoria, for defendant in error.

EPES, J.

The Virginian Railway Company assigns error to a judgment of the circuit court of Brunswick county rendered on September 17, 1929, in an action brought by James T. Haley against the Virginian Railway Company to recover $50,000 as damages for injuries received by him on September 18, 1928, when an automobile in which he was riding was struck by a passenger train at a grade crossing of a public highway and defendant's railroad in the unincorporated village of Dolphin in Brunswick county. We shall refer to the parties as "plaintiff" and "defendant" as they appeared in the trial court.

The notice of motion for judgment alleged various acts of negligence, but at the trial the case narrowed itself down to two questions: (1) Did the defendant fail to give by whistle and bell the crossing warnings required by section 3958 of the Code; and (2) if so, was its negligence in this respect a proximate cause of the injury?

The jury found a verdict for the plaintiff for $6,000, upon which verdict the court entered judgment.

The first assignment of error is that the court erred in refusing to sustain the motion of the defendant to set aside the verdict on the ground that the evidence is insufficient to support a verdict in favor of the plaintiff.

The defendant asserts that the evidence is insufficient to support a verdict in favor of the plaintiff for two reasons:

(1) The only evidence that the defendant failed to give the crossing signals is the testimony of certain witnesses that they did not hear the crossing signals given, which is purely negative testimony; while, on the other hand, a number of witnesses give positive testimony that the statutory signals were duly given; and, therefore, in contemplation of law, there is no evidence that the crossing signals were not given.

(2) Even if the statutory signals were not given, the physical facts and uncontradicted evidence show conclusively that the failure to give the statutory signals was not the proximate cause of the accident.

The plaintiff was a Baptist evangelist who had been assisting Rev. L. J. Adkinson in conducting a revival at a church near Dolphin. On the day of the accident these two ministers had been invited to dine with Mrs. Lizzie Parrish, and were on their way to her home, riding in Mr. Adkinson's automobile, which was being driven by him.

The automobile was a Chevrolet four-door closed car. The window in the left front door was down (open) several inches; and there was a crack in the window in the right front door, that is, it was lowered very slightly. The other windows were closed. It was raining "just a steady rain, " and the wind was blowing from the eastward, though not directly from the east.

Mrs. Parrish's residence is on the south side of the railroad; but it was their intention to go to the post office, which is on the north side of the railroad, to get their mail, and then return to Mrs. Parrish's home.

The public highway on which plaintiff was traveling crosses the Virginian Railway tracks at grade 160 feet east of defendant's passenger station at Dolphin. The railroad runs almost due east and west. The highway runs almost due north and south, and is straight for at least 250 feet on each side of the railroad, and apparently continues in practically the same general direction for at least 1, 500 feet on the south side of the railroad. The automobile in which plaintiff was riding was going north along this highway.

The accident happened a little after 12 o'clock, noon, on September 18, 1928. The train which struck this automobile was the regular west-bound passenger train of the defendant composed of an engine and three cars, which was scheduled at Dolphin about 12 noon, but was running late. The electric headlight of the engine was illuminated as it approached Dolphin. Mr. Adkinson testifiesthat he knew the schedule of the train and that it was scheduled to have passed Dolphin before the time at which he was approaching the crossing; but he did not know it was late, and thought that it had passed.

The main line track of the defendant, on which the accident happened, from Dolphin to a point a considerable distance to the east of Dolphin, curves slightly to the north with a curvature of 1°30'; but one standing on the main line track at this crossing can see a train approaching from the east at any point for approximately one mile. This curvature to the north has the effect of increasing the range of vision along the track of one approaching the crossing from the south.

The obstruction to the view caused by scattered buildings make looking for a train coming from the east ineffective for a person on the highway approaching the railroad from the south until he is within about 100 feet of the crossing. But from a point 100 feet south of the main line track to the center of the main line track, there is no point at which a person on the highway approaching the crossing from the south cannot see a train at any point on the main line track for a distance of over half a mile east of the crossing, if there is nothing on either of the side tracks to obstruct his view.

Where this highway crosses the railroad there are three tracks, which from south to north are the house side track, the passing side track, and the main line track. The distance from the south rail of the house track to the south rail of the main track is 28 feet. The place at which Mr. Adkinson, who was driving the automobile, testifies he first looked to the east to see if a train was approaching, is 18 feet south of the south rail of the house siding, and 45 feet south of the south rail of the main line.

At the time of the accident three coal cars were standing on the house side track east of the crossing. Some of plaintiff's witnesses estimate the distance of the western end of these cars to have been from 66 to 90 feet from the center of the highway. The defendant's witnesses place the western end of these cars 141 feet east of the center line of the highway. The total length of the space occupied by these three cars was 100 feet.

If these cars were located with their western end 66 feet east of the crossing, then from the time a person approaching from the south got within 50 feet of the center of the main line track until he was on the house siding, he could not see a train approaching at any point on the main line east of these cars, unless by looking over the top of the coal cars he could see the top of the engine or the tops of the cars of the train; but looking past the west end of the cars he had an unobstructed view of the track for a short distance. When within 50 feet of the center of the main line track he had an unobstructed view of the track for only approximately 240 feet east of the crossing. At 36 feet from the center of the main line crossing the span of his view would have been extended to approximately 330 feet east of the crossing. But after getting on the house track (28 feet south of the south rail of the main line track) he had an unobstructed view of a train approaching from the east for about one mile.

When he was 75 feet from the crossing east of the coal cars, one could have seen a train approaching from the east when it was a half mile from the crossing.

The tops of the engine cab and passenger coaches stood a little higher than the tops of the coal cars, and the smokestack of the engine was yet a little higher. At 75 feet from the crossing a close observer, by looking carefully, could have looked over the tops of the coal cars and seen the smokestack and the tops of the cab and coaches of a train which was on the main line behind the coal cars; and this may even have been true as to a person anywhere between a point 75 feet from the main line and the house side track. But the further the train was from the coal cars and the nearer the observer was to them, the smaller the part of the train which could be seen over the tops of the cars, and when the train was at no great distance from the coal cars an observer, situated as were the people in this car, looking over the coal cars, could have seen no part of it.

Briefly stated, the topography of the country along and adjacent to the defendant's tracks is as follows:

For about 260 feet east of the Dolphin crossing defendant's right of way is 200 feet wide. From there on east it is 100 feet wide. The right of way is clear of obstructions to vision or hearing along the axis of the right of way.

East of the crossing the land along the track is open on the north side of the railroad for 740 feet and on the south side for 710 feet. This open territory contains the town or village of Dolphin, and there are scattered buildings on both sides of the railroad. The positions of those which are material to the issues here involved will be detailed later.

Plaintiff's witnesses Mr. and Mrs. C. P. Dawson, Mrs. Parrish, Preston Abernathy, and 3. M. Sykes, and defendant's witness, R. F. Mann, all of whom testify that they did not hear the whistle blown for the Dolphin crossing, were each at a different point in this open territory at the time the train was where the statute requires the whistle to be blown for the Dolphin crossing.

Just east of this open territory the land adjacent to the right of way is wooded onboth sides of the railroad. On the north side this wooded area extends from a point 740 feet to a point 2, 320 feet east of the Dolphin crossing, and on the south side from a point 710 feet to a point 2, 080 feet east of the crossing. East of...