Wash. & O. D. Ry v. Thompson
| Decision Date | 14 June 1923 |
| Citation | 118 S.E. 76 |
| Court | Virginia Supreme Court |
| Parties | WASHINGTON & O. D. RY. v. THOMPSON. |
Error to Circuit Court, Fairfax County.
Action by Walton C. Thompson against the Washington & Old Dominion Railway. Judgment for plaintiff, and defendant brings error. Reversed.
W. J. Lambert, of Washington, D. C, and Wilson M. Farr, of Fairfax, for plaintiff in error.
J. W. Rust and Walter Tansil Oliver, both of Fairfax, for defendant in error.
This is an action for personal injury to Walton C. Thompson when an automobile which he was driving was struck at a highway crossing by one of the cars of the Washington & Old Dominion Railway, which was operated by electricity. There was a verdict and judgment for the plaintiff, and the company is here assigning eight errors, and asking for final judgment in its favor.
The case presents the usual features. The plaintiff alleges the negligence of the defendant in operating its train too rapidly and in failing to give signals as it approached the crossing. This the defendant denies and pleads that the plaintiff's own negligence in failing to stop was the direct cause of his injury; and the plaintiff replies invoking the discovered peril, or last clear chance, doctrine. There are also the customary conflicts in testimony as to some of the circumstances.
Taking up first the allegation of the negligence of the company: While there is positive testimony to the effect that the defendant was free from negligence, there is also evidence to the contrary, and without amplifying this opinion with the testimony, it is sufficient to say that the verdict of the jury must be regarded as having settled this question in favor of the plaintiff.
Secondly, then, we must consider the evidence as to the alleged contributory negligence of the plaintiff: He was approaching a crossing with which he was perfectly familiar, on a clear day at about 10 o'clock a. m., driving an automobile accompanied by his six year old son. He says that he stopped his automobile seven or eight feet from the north rail of the track; that he knew the crossing "to be a very bad crossing, " and that he "took all precautions in crossing, " because he "crossed it daily and knew all about it"—that he pulled up his emergency brake and stopped the machine. He also says that he looked down the track towards Wedderburn station, from which the train was approaching; but as his view was obstructed by a bank of earth with bushes growing on it and with fresh earth thrown thereon, he could not see, and that he released the brake and started down an incline and on across the track. He claims that there was an abrupt chuck in the highway at the crossing, and "quite a gully, as you might say, " and this is why he started slowly. He also testifies that from the point at which he stopped, he being in the driver's seat 14 or 15 feet from the track, he could see the track itself in the direction from which the car approached about 30 or 40 feet, and that he could also see the overhead line upon which the trolley moved for about 100 feet He then proceeded to cross the track without again looking. It is manifest that had he looked again before reaching the track his vision of it would have been greatly extended. He thus describes the occurrence:
"When I started across, just as the front wheels of the Ford had rolled over the north track, I looked up the track, and I saw the train coming apparently at a high rate of speed, and then I put on all the gas that was possible for the car to operate under to get off, and I could see no slacken in the car, and hoping upon hope that they might see us in time, or at least apply the brakes so it would give us a chance to get off, and I thought that I was nearly off the track, when just at that time the train struck right over the rear wheels and threw the front end of the Ford back into the train and drug us down the track and turned us over and over several times, and by some means we were released from this train."
It appears that on approaching the track at several places a car coming from the direction in which this car came could be seen 960 feet, and that there is nothing to obstruct this view except the bank of earth referred to. The plaintiff repeatedly showed that after he started his automobile to traverse the 7 feet between the front of his machine and the track, he did not look again until after the wheels of his machine had crossed one of the rails of the single track. One of his own witnesses, Hardy, who was at work plowing on a hill in a field near by, who, being 60 yards from the crossing, had a good view of the scene, testified that he saw the machine when it had stopped about 7 feet from the track, and that at that time the car was "right on him, " and again that "the electric car was very nearly on him—very close to him." Upon being pressed to give an estimate of the distance between the electric car and the crossing at that time, the witness says that it was about as far away as the door of the courtroom in which he was at the time, and that this distance was about 40 feet or 45 feet. Taking his own testimony, along with the testimony of this witness so introduced by him, and the physical facts that in the few seconds which it took him to drive his car from a point 7 feet from the first rail to the track, and that he was struck by the electric car just before he had clearedthe track, it is evident that he was recklessly negligent in attempting to cross the track when the car was so near. He himself locates this approaching ear of the company as being about 220 feet away when he first saw it. The collision itself which followed in the few seconds thereafter appears clearly to indicate that he overestimated this distance, and convincingly confirms the testimony of his own witness that the approaching car was very much nearer to the crossing than he estimated it to be.
These being the facts, it is clear to us that the plaintiff was guilty of negligence which, if not the direct cause of his injury, contributed to it.
Upon this phase of the case, Washington & Old Dominion Railway v. Zell's Adm'r, 118 Va. 759, 88 S. E. 309, is conclusive. Many pertinent authorities are there cited and summarized, and this is said:
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