Virginian Ry. Co.,v,farr.

• Decision Date: 20 January 1927
• Citation: 136 S.E. 668
• Parties: VIRGINIAN RY. CO. v FARR.
• Court: Virginia Supreme Court

136 S.E. 668

VIRGINIAN RY. CO.vFARR.

Supreme Court of Appeals of Virginia.

Jan. 20, 1927.

Error to Circuit Court, Lunenburg County.

Action by Helen B. Farr against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Williams, Loyall & Tunstall, of Norfolk, H. T. Hall and Alartin & Wingfield, all of Roanoke, W. C. Plunkett, of Norfolk, and N. S. Turnbull, Jr., of Victoria, for plaintiff in error.

Watkins & Brock, of Farmville, for defendant in error.

WEST, J. Helen B. Farr was injured when the automobile in which she was riding ran over the edge of a cut near the end of an overhead bridge, and fell a distance of 22 feet upon the tracks of the Virginian Railway Company. She recovered a judgment against the company for $10,000, to which this writ of error was allowed.

When the Virginian railroad was constructed through Lunenburg county in 1906, the Tidewater Railway Company, predecessor of the Virginian Railway Company, in order to avoid a grade crossing, secured permission from the board of supervisors of the county to make a change in the location of the public road just west of Meherrin. The old road crossed the company's right of way practically at grade and at an angle of 45 degrees. The new road leaves the old road at a point 100 feet south of the company's track, and runs parallel therewith, eastward, for about 500 feet, and then makes a right angle curve to the left, and crosses the track on an overhead bridge which spans a cut 22 feet deep. The new road again intersects the old about 300 feet north of the bridge.

Helen B. Farr resided in New York City, and worked as a corsetiere, except during the summer months, when she looked after the rooms in a hotel at Asbury Park, N. J. M. E. Sexton was her acquaintance and friend, who owned one or more race horses and lived at Asbury Park. Sexton's horse was in the races at three county fairs in North Carolina.

Mrs. Farr, being acquainted with some other ladies who were going, in other conveyances, to attend the races, accepted the invitation of Mr. Sexton to accompany him on the trip, as his guest. They traveled alone in a Franklin roadster, and attended the races at Oxford, Concord, and Greensboro. The car was owned and driven by Sexton, who was an experienced and careful driver. Mrs. Farr had no knowledge of an automobile, could not drive a car, and had no authority or control over the one in which she was riding. On October 22, 1924, they were traveling along the county road, now a state highway, above referred to, on their return home. Neither of them had ever been over the road before. About 6:15 in the afternoon it was getting dark, and the road was dusty. Upon inquiry, they were informed that the nearest village was Meherrin, about one mile ahead of them. They drove, on, and soon came to the right angle curve in the road. According to Mrs. Farr's testimony, they were proceeding with all proper caution, going at not to exceed 10 or 15 miles per hour, but for some reason, just before the driver fully rounded the curve, his car began to leave the road. The railroad company had not erected any sign or warning or built any fence, guard rail, or other obstruction to make the road safe for those who might accidentally leave the roadbed near the overhead bridge. When they discovered the open cut, Sexton applied his brakes, but was unable to stop the car before it went over the enbankment, about 10 feet from the end of the bridge. As a result of the accident, Sexton was instantly killed, and Mrs. Farr was seriously injured.

In disposing of the assignments of error, the questions to be considered are:

(1) Was the defendant guilty of any primary negligence which was the proximate cause of the accident?

(2) If Sexton was guilty of negligence, can it be imputed to the plaintiff?

(3) Was the plaintiff guilty of any negligence which contributed to her injury?

1. Whether the defendant has discharged the duty it owes to persons traveling the road, depends mainly upon a proper construction of the statutes which regulate the change in location of county roads and the building of overhead bridges and the approaches thereto by railroad companies.

The statutes in force at the time the bridge involved in this case was erected were subsections 38 and 39 of section 1294d, vol. 1, Pollard's Code, 1904, and subsection 3, § 1294b, c. 54A, p. 655, vol. 1, Code 1904 (now sections 3884, 3885, and 3886, vol. 1, Code 1919).

Acting under subsection 3, supra, the board of supervisors gave the railway company permission to alter the location of the road and build the bridge. Subsections 38 and 39, supra, appear at the foot of this page.¹

Subsection 3, supra, so far as material here, reads as follows:

"If any railroad, canal, turnpike, or other public service corporation deems it necessary in the construction of its works to cross any other railroad, canal, turnpike, or works of any other public service corporation, or any county road, it may do so: Provided, such crossing shall be so located, constructed, and operated as not to impair, impede, or obstruct, in any material degree, the works and operations of the railroad, canal, turnpike, or other works, to be crossed; and provided, such crossing shall be supported by such permanent and proper structures and fixtures, and shall be controlled by such customary and approved appliances, methods, and regulations as will best secure the safe passage and transportation of persons and property along such crossing, and will not be injurious to the works of the company to be crossed. The cost of such crossings, their appliances and apparatus, and of the repair and operation of the same, shall be borne by the party desiring to make the crossing. * * * But any county road, or stream, or water course, may be altered by any such company for the purposes aforesaid whenever it shall have made an equally convenient road or waterway in lieu thereof, the said company having first obtained the consent of the board of supervisors of the county to the alteration of any road or highway."

The statute (subsection 3) requires that any railroad company, desiring to alter the location of a county road or build its tracks across it, shall build an "equally convenient" road in lieu of the old road, and that the crossing shall be so constructed and operated as to "secure the safe passage and transportation of persons and property along such crossing." The Legislature intended that the privileges granted public service corporations should be exercised with as little inconvenience and increased risk of danger to the traveling public as are consistent with the enjoyment of the rights conferred. The requirements of the statute are not met by simply building a convenient road and erecting a crossing. The crossing must be so constructed and guarded that persons using ordinary care traveling the road may pass over the crossing in safety. These are continuing duties and require that the precautions taken shall be increased to meet the changed conditions as they may arise.

In the instant case, the county road is 30, and the traveled portion thereof 20, feet wide. The company dug a cut across the road 98 feet wide and 22 feet deep, over which it built a bridge only 18 feet wide. The road was on the company's right of way for more than 70 feet from the bridge, and approached the bridge nearly at grade. The company's right of way on each side of the road was level and free from bushes and weeds. There was nothing on the east side of the road to hinder travelers on the highway who might, from any cause, be diverted from the road to the right of way, from going over the edge of the embankment into the cut. While the passage over the crossing may have been, when the bridge was built, reasonably safe for a few slow horse-drawn vehicles, it cannot be said to be safe under present day conditionswhen about 300 fast moving automobiles are passing over the road, night and day, in 24 hours.

It was the duty of the defendant to erect and maintain fences, guard rails, or other obstructions, for the protection of the traveling public against the danger of driving into the cut. Without the cut, or with it properly guarded, the accident could not have occurred.

In an opinion handed down to-day in Norfolk & Western Railway Co. v. James, 136 S. E. 660, in which the facts are almost identical with those in the instant case, we held the company guilty of negligence in its failure to erect and maintain a fence, guard rails, or other obstructions near the edge of the embankment at the end of an overhead bridge, for the protection of travelers using the crossing.

For the foregoing reasons, and for the reasons stated in the Norfolk & Western Case, supra, we are of the opinion that the failure of the Virginian Railway Company to erect and maintain a fence, guard rails, or other obstructions, at the abutment of the overhead bridge and near the edge of the railroad cut was negligence which was the proximate cause of the injury complained of.

In Charlottesville v. Southern Railway Co., 97 Va. 430, 34 S. E. 98, the court, speaking through Judge Buchanan, said:

"In the view we take of this case it is unnecessary to decide whether or not the original crossing was constructed in accordance with the provisions of that statute. If it had been, it does not follow that the crossing is now such an one as the law requires. The duty of a railroad company in such a case is a continuing one. It does not fulfill its whole obligation by putting the highway in such a condition at the time the railroad is built that the crossing does not impair the safety, or impede or endanger the passage or transportation of persons or property along the highway, nor by putting and keeping it in such a condition as would have accomplished that end if the conditions and circumstances, existing at the time the railroad was built, had continued. The Legislature intended to provide for all time...