Va.N Ry. Co v. Bacon

• Decision Date: 19 March 1931
• Citation: 157 S.E. 789
• Court: Virginia Supreme Court
• Parties: VIRGINIAN RY. CO. v. BACON.

157 S.E. 789

VIRGINIAN RY. CO.

v.BACON.

Supreme Court of Appeals of Virginia.

March 19, 1931.

Error to Circuit Court, Lunenburg County.

Action by Frank W. Bacon against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

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

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

Thos. W. Ozlin, of Kenbridge, and R. S. Weaver, Jr., of Victoria, for defendant in error.

HOLT, J.

The plaintiff was injured in a crossing accident and for that injury has recovered a judgment for $5,000, which judgment is now before us on a writ of error.

This accident occurred east of Victoria and west of Kenbridge. The highway along which the plaintiff traveled crossed the railroad at an angle of about 50 degrees, which angle of approach, roughly speaking, was held for about 200 hundred feet, after which the county road bore to the east, and for somewhere about 600 feet its approach was around 30 degrees, when it bore still further to the east and was more nearly parallel to the railroad's right of way. Somewhere about 1, 600 or 1, 700 feet east of the crossing is a small body of woods. Between these woods and the crossing there is an open field, and a traveler on the highway can see a train at any point within this space of 1, 700 feet, the only obstructions to the view being a barn and one dwelling house on a side road 600 feet east of the crossing and three small piles of cross-ties on the right of way 70 feet east of the crossing and 20 feet south of the railroad. A passenger train, made up of two engines and three cars, came from the east, as did the automobile in which plaintiff sat. One standing in the county road could see a train at any point over the piles of cross-ties, so that for practical purposes that which did the damage could have been seen by these travelers for more than 1, 500 feet had any sort of proper care been exercised.

Bacon rode as a guest in a Ford runabout, driven by his friend, Mr. Gill. He sat on the right-hand side and next to the railroad; Gill, who drove it, sat on the left. Their vision was obscured by the automobile curtains, which were up; but the day was clear, and it is a matter of common knowledge that these curtains have in them windows of some kind through which one can see so conspicuous an object as a locomotive.

We have recently had occasion, in Norfolk & W. Ry. Co. v. Wellons' Adm'r, 154 Va. ——, 154 S. E. 575, to consider the care which a guest riding in an automobile must exercise for his own protection, and need not repeat here what was said there. Moreover, Gill told Bacon that they were approaching this crossing and to look out, and this he claims to have done. That he did it carelessly is too plain for argument, for neither of these gentlemen saw this train at all until the moment of impact. They were traveling at a rate of 8 or 10 miles an hour, the train from 25 to 30 miles an hour. We are therefore met with the patent fact that plaintiff was guilty of primary negligence, and that his negligence contributed to his hurt.

The first assignment of error deals with the instructions.

This is instruction B given at the instance of the plaintiff: "The court further instructs the jury that contributory negligence on the part of the plaintiff, Frank W. Bacon, cannot be presumed. On the contrary, the said plaintiff is presumed to have exercised due and proper care at the time of the accident, in the absence of evidence to the contrary, and the burden is upon the defendant railway company to prove contributory negligence by a preponderance of the evidence to the satisfaction of the jury, unless the evidence offered by the plaintiff shows that he was guilty of contributory negligence, or unless it may be fairly inferred from all of the evidence and circumstances in the case."

It submits to the jury the question of contributory negligence. That is not here an open question. It is too patent for discussion, and no verdict based upon its nonexistence could stand, nor was there any occasion to mention evidential presumptions which are resorted to in the absence of evidence and have no place in a case in which all of the facts fully appear and which necessarily point to one conclusion. It would be improper to instruct the jury, when there was a plea of guilty, upon the law of reasonable doubt. Wellons' Case, supra; Norfolk & W. Ry. Co. v. Hardy, 152 Va. 783, 148 S. E. 839; Baltimore & O. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L Ed. 167, 56 A. L. R. 645; Riggsby v. Tritton, 143 Va. 903, 129 S. E. 493, 45 A. L. R. 280.

[4, 51 Instruction C is next the subject of criticism. This is that, instruction: "The court instructs the jury that if they believe from the evidence that the plaintiff, Frank W. Bacon, was in the private automobile of W. L. Gill, by invitation, and that the plaintiff was exercising no control over the driver, then the negligence of W. L Gill, if any, cannot be imputed to the plaintiff, but it was incumbent upon the plaintiff to use ordinary care for his own safety."

It is perfectly true that Gill's negligence cannot be imputed to Bacon. Norfolk & W. Ry. Co. v. Wellons' Adm'r, supra. But that proposition here settles nothing, for Bacon was himself guilty of primary negligence.

Instruction D told the jury: "That if they believe from the evidence that the defendant failed to give the statutory signals, as defined in instruction A, and that the plaintiff was injured, then it is a presumption of law that such failure caused the injury; but the court instructs the jury that this presumption may be rebutted by the physical facts and circumstances surrounding the aseident, or by positive evidence, and that it is for the jury to determine if there has been such rebuttal."

The presumption which obtains when there is proof of injury and, a failure by the railroad to give the statutory crossing signals, and nothing more, was considered in Norfolk Southern R. Co. v. Banks, 141 Va. 715, 126 S. E. 662; Gregory v. S. A. L. Ry. Co., 142 Va. 750, 128 S. E. 272; Etheridge v. Norfolk Southern R. Co., 143 Va. 789, 129 S. E. 680, and later in Southern Ry. Co. v. Johnson, 151 Va. 345, 146 S. E. 363.

The Johnson Case was decided on June 14, 1928, and is reported in 143 S. E. 887. It was there held that there was a presumption that such causal relation existed. A petition to rehear was filed, and on January 9, 1929, that opinion was modified, and as modified it is reported in 151 Va. 345, 146 S. E. 363, 368. The court said: "The original opinion has been slightly amended without changing the result, by omitting as obiter dictum any reference to any legal presumption to be drawn merely from proof of the injury and the failure to give the statutory signals. * * *"

Norfolk & Western Ry. Co. v. Mace, 151 Va. 458, 145 S. E. 362, follows the Johnson Case as originally written, and was decided before that case had been reheard, so it is not authority on this point. The Mace Case merely adopted as settled law the rule laid down in the Johnson Cose.

This matter has been carefully considered in an opinion this day handed down in the case of Virginian Railway Co. v. Haley (Va.) 157 S. E. 776. The conclusions there reached are here approved, but it is not deemed necessary to restate them, or the reasons therefor, in detail.

Here there is no occasion to resort to presumption at all, for something more is shown by the record than an injury and failure to give the required statutory signals.

[71 We do not desire to be understood as receding from what is said in Norfolk & W. Ry. Co. v. Wellons' Adm'r, supra. There the view was entirely unobstructed, and we held that it was impossible for those in the automobile not to have seen the approaching train. Here the automobile curtains were down, and Bacon must have looked through the window, which limited his angle of vision. The train which occasioned the damage came measurably from behind. He should have seen it, and his failure to do so was negligence, but we cannot, as a matter of law, go beyond this. The mere fact that he was careless in looking does not preclude a recovery, but must be weighed in mitigation of damages. It is possible that he might have heard the whistle, if sounded, and in that way have saved himself. Whether or not it was in fact blown is for the jury to say at another trial.

This is instruction E: "The court instructs the jury that they cannot find the plaintiff, Frank W. Bacon, guilty of contributory...