Wash. & O. D. Ry v. Zell's Adm'x

• Decision Date: 16 March 1916
• Citation: 88 S.E. 309
• Court: Virginia Supreme Court
• Parties: WASHINGTON & O. D. RY. v. ZELL'S ADM'X.

88 S.E. 309

WASHINGTON & O. D. RY.

v.ZELL'S ADM'X.

Supreme Court of Appeals of Virginia.

March 16, 1916.

Error to Circuit Court, Alexandria County.

Action by Ernest Zell's Administratrix against the Washington & Old Dominion Railway. There was a judgment for plaintiff, and defendant brings error. Reversed, and judgment entered for defendant.

C. E. Nicol, of Alexandria, and W. J. Lambert, of Washington, D. C., for plaintiff in error.

John M. Johnson, of Alexandria, and Crandal Mackey, of Washington, D. C, for defendant in error.

KELLY, J. Ernest Zell was killed on a highway crossing when an automobile in which he was riding was struck by a passenger train owned and operated by the Washington & Old Dominion Railway. His administratrix brought this action and recovered the judgment under review.

There was a demurrer to the declaration, which was overruled by the circuit court, and that action, though earnestly complained of, was plainly right. The ground of the demurrer was the failure to allege that either Zell or Peck, the driver and only other occupant of the automobile, looked and listened for a train before attempting to cross the track. This was a matter of defense which the plaintiff was not required to negative or anticipate in his pleading or proof. Interstate R. Co. v. Tyree, 110 Va. 38, 40, 65 S. E. 500; U. S. Spruce Lumber Co. v. Shumate, 87 S. E. 723. But if the rule were otherwise, the declaration would be sufficient in this respect because it does allege that the plaintiff's intestate was "without any negligence on his part." Danville v. Thornton, 110 Va. 541, 550, 66 S. E. 839, 842.

At the trial the defendant demurred to the evidence, but the court overruled the same and entered up judgment for the plaintiff upon the conditional verdict of the jury. This action constitutes the basis of the only other assignment of error.

Zell and Peck, both residents of Alexandria, were intimate friends and associates. Peck owned an automobile in which he and Zell frequently went out together on pleasure trips. Both were familiar with the machine, and were competent drivers. When out together they would sometimes, even on the same run, take turn about at the wheel. Zell frequently drove the car when Peck was along, and seems to have been the man who always got it out and ready for a trip. It was not unusual for them to go to Washington together on Sunday, and they were on such a trip when they met their death in the collision above mentioned.

On Saturday night before the Sunday morning of the accident, Peck, who kept a grocery store, left his place about 9:30 o'clock in his car and in company with Zell. Where they went or what they did between that hour and some time next morning does not appear. The witness Leachman, who worked at the store and stayed with Peck, retired about 11 o'clock, and the latter had not then returned, but he did come in and go to bed some time during the night. At 9:30 next morning Zell came around and waked Peck and Leachman, asked if they were going to sleep all day, and then went out, got the machine from its place, and was fixing and cleaning it up while Peck dressed and got his breakfast, which he did in very few minutes. He and Zell then immediately started off in the car, Peck at the wheel. Leach-man says that he does not know anything about their plans on this occasion, except that "they had made some arrangements to go out." The declaration avers that they intended to go to Washington, and they were next seen, so far as the evidence shows, about 1 1/2 miles from Alexandria going northward, and approaching the intersection of Mt. Vernon avenue with the track of the defendant company. This point is known as "Hume's crossing, " and is outside of the city in Alexandria county, but it is a crossing much used, both by vehicles on the highway and by trains running between Alexandria and Blue-mont Junction. In coming from Bluemont Junction to Alexandria the trains run backwards, that is, with the cars in front, the engine moving backwards. This practice has been carried on for years, and this accident appears to have been the first of the kind on that line. The train, an engine and tender and one combination passenger and baggage car, was running in this manner going east towards Alexandria when the collision occurred.

This was a dangerous crossing for travelers coming, as these two men were, from the south, because on that side of the track and west of the highway there was a natural embankment or hill which obstructed the view from the highway to the track and vice versa. Various estimates, not purporting to be based upon actual measurements or to be absolutely accurate, appear in the record as to the extent and effect of this obstruction, but the question is set at rest by the results of undisputed tests and measurements made by a photographer assisted by an engineer. These tests and measurements, construed most strongly against the defendant, demonstrate that the driver of an automobile, coming north on the highway, could, in a perfectly safe and ample stopping distance of the track, see a train approaching from the west at a distance of at least 75 feet from the crossing. As he drew nearer the track he could see the train still further west, the track in that direction being straight for several hundred feet. The maximum rate at which any witness placed the speed of the train was "between 25 and 30 miles an hour." This same witness, the only eyewitness who testified, and who was in a position to see both the train and the automobile and "just stopped and waited to see which would cross first, " said that the automobile approached the crossing at about 15 miles an hour, and slowed down just before reaching it to a speed of from 10 to 12 miles, the impression made on him being that the machine slowed down to avoid the jar which would result from running at a faster rate over the crossing.

A number of grounds of negligence on the part of the railway company are charged in the declaration, chief among which are excessive speed, failure to give the statutory signals for the crossing, running the train backward, failure to keep a lookout for the crossing, and want of proper equipment. It is earnestly contended on behalf of the company that the plaintiff wholly failed to establish any of these grounds. But, conceding that there was evidence tending to show negligence on the part of the defendant, there can be no recovery by the plaintiff for the reasons hereinafter stated.

The negligence of the driver of the car is perfectly manifest. He had no right to proceed across the track without looking and listening for a train. The greater the danger the greater was the measure of his duty. If he did not see or hear a train when he first reached the point at which the obstruction began to pass from his westward vision along the track, then it was his duty to continue to look and listen until he reached the track. The very contention made here that he had to be close to the track before he could see any distance to the west emphasizes the importance of caution on his part. If the running of his machine interfered with his hearing or looking, it was his duty to stop and look and listen so as to make looking and listening effective.

Travelers approaching a public crossing must bear in mind that, while their rights and those of the railroad company at that point are "mutual, reciprocal, and coextensive" in general, the law has always accorded, and in the nature of the case must accord, to a moving train the right of way. Southern Ry. Co. v. Torian, 95 Va. 454, 28 S. E. 569; Elliott on Roads and Streets (3d Ed.) § 1021, and cases cited in note 77; Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403. A failure on the part of the railroad company to give proper warning or other lack of ordinary care will render the company liable if its negligence is the proximate cause of an injury at a crossing and the injured party is without fault— "but the track itself is a warning of danger, and a traveler must always exercise care proportionate to the known danger, and this care must be such as one who knows the danger and is aware of the prior right of passage would be expected to exercise." 3 Elliott on Railroads (1897), and cases cited in notes 1 and 3.

In the latest reported crossing case decided by this court (U....