Willis v. Pennsylvania Railroad Company

• Decision Date: 07 August 1959
• Docket Number: No. 7835.,7835.
• Citation: 269 F.2d 549
• Parties: George WILLIS, III, Administrator d. b. n. of Estate of Jacob Willie Bell, deceased, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

269 F.2d 549 (1959)

George WILLIS, III, Administrator d. b. n. of Estate of Jacob Willie Bell, deceased, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, a corporation, Appellee.

No. 7835.

United States Court of Appeals Fourth Circuit.

Argued April 9, 1959.

Decided August 7, 1959.

Robert Cantor and J. D. McMullan, Richmond, Va., (Cantor, McMullan & Cantor, Richmond, Va., on the brief), for appellant.

Thomas H. Willcox, Jr., and Thomas H. Willcox, Norfolk, Va. (Willcox, Cooke, Savage & Lawrence, Norfolk, Va., on the brief), for appellee.

Before SOPER, Circuit Judge, and BOREMAN and THOMPSON, District Judges.

THOMPSON, District Judge.

This case is before the Court on appeal from the decision of the District Court denying appellant's motion to set aside the verdict of the jury and to enter judgment for appellant or to order a new trial on the single issue of damages or on all the issues. The appellant, personal representative of J. W. Bell, deceased, plaintiff in the trial court, and the appellee, Pennsylvania Railroad Company, defendant in the trial court, will be referred to herein as plaintiff and defendant, respectively.

Seaman 2nd Class J. W. Bell was killed when the automobile operated by him collided with the side of defendant's moving train where the highway intersects defendant's double-track main line railroad in Northampton County, Virginia. Plaintiff brought this action for damages on account of Bell's death.

The defendant's evidence tended to show that:

at the point where the highway crosses the tracks, the railroad ran generally north and south, and the highway ran generally east and west. Bell was alone in his automobile traveling west, it was daylight and the weather was clear; the train was proceeding south at a speed of 22 to 25 miles per hour. Bell had a clear view of the crossing for 500 feet before he reached it, and the track was visible to him in the direction from which the train was approaching for a distance of several hundred feet when his vehicle was 300 to 400 feet from the crossing. The railroad crossing was indicated by prominently displayed signs along the highway for several hundred feet east of the crossing which was equipped with electrically activated gates, flashing lights, and bells. The gate on the east side of the track, when lowered, extended across the west-bound highway traffic lane and similarly, the gate on the west side of the track, when lowered, extended across the east-bound traffic lane.

The only eye-witness to the collision testified that the locomotive whistle was blowing, its headlight burning, and its bell ringing as it approached the crossing; the gates were down, and the decedent attempted to "beat" the train across the track by swerving out of his traffic lane around the end of the gate, and in so doing ran head-on into the moving train. Witness Smith, who was driving a truck and approaching the crossing from the direction opposite to that from which Bell was approaching, observed the train and Bell\'s car approaching the crossing and saw the gates go down when the train was 250 feet from the crossing, at which time Bell was traveling in his proper lane of the highway. The fireman, Daugherty, who was operating the locomotive at the time from its right side, stated he turned on the automatic bell and began to blow the whistle at the whistle board approximately 1,500 feet before reaching the crossing, the bell rang continuously, and the whistle blew repeatedly from then until the train passed the crossing. The crossing lights were blinking, and he could see that both gates were down until he was within 150 to 200 feet from the crossing at which point the engine obscured his view of the gate on the left side of the crossing. He immediately threw the locomotive into emergency when the engineer called, "Hold her." The engineer who was riding on the same side of the locomotive as that from which Bell\'s car approached, saw the car when the locomotive was approximately 250 to 300 feet from the crossing, and the car at that time was farther away from the crossing than the locomotive. He was unable to see the gates because he was on the curved side of the locomotive as it approached the crossing. When the car was within 75 to 100 feet from the crossing, he realized that it was not going to stop and he called to the fireman to put the locomotive in emergency stop. The defendant\'s signal inspectors and maintenance men had tested the crossing signals eight days before the accident and they were functioning properly at that time. They again tested the gates and other signals two hours after the accident and they were then operating properly.

The plaintiff's evidence tended to show that:

the defendant\'s train conductor was in the caboose, the last car on the train, and as the caboose crossed the crossing, he looked out the window and saw that the gate on the side from which Bell had approached was about half way up, high enough that there was room for an automobile to have passed beneath the extreme extension of the gate without striking it. Highway Trooper Duval and Naval Investigator Powell arrived at the scene approximately two hours after the accident and observed skid marks in the north lane (Bell\'s proper lane) of the highway which seemed to veer to the center of the road, near the crossing. They found no scratches or marks on the gate. They made photographs of the scene of the accident at that time. They also found a gouged-out place on one of the cross-ties in the north highway lane, which they undertook to identify as having been made by the right-front wheel of Bell\'s vehicle from a piece of matching wood they found in the right-front wheel of his car.

This evidence presented a factual situation for the jury. The applicable law is found in the Virginia highway crossing statutes, Va.Code Ann. § 56-414 (1950)¹ requiring the defendant to have its locomotive equipped with certain warning signals, and § 56-416² thereof providing that if the required statutory signals are not given and an accident occurs, the comparative negligence rule is applicable. Under these statutes, if the statutory signals were not given, such failure constitutes negligence per se, and the defendant would be liable if such failure proximately contributed to the accident even though Bell may have been guilty of negligence which proximately contributed to the accident. Negligence on the part of Bell would mitigate the damages, but not bar a recovery. If, however, the defendant gave the required statutory signals, it then became incumbent upon the plaintiff to show that the defendant was guilty of other negligence which was the sole proximate cause of the accident, for if the statutory signals were given, plaintiff can recover only if his decedent was free from any negligence which proximately contributed to the accident, as the doctrine of comparative negligence is only applicable where the statutory signals are not given.

The jury was fully instructed on the different theories of negligence involved. The jury found for the defendant. There was an abundance of credible evidence to support its finding, and we will not disturb the verdict unless there was reversible error in the trial.

The plaintiff seeks a reversal on the following grounds, which, stated in his brief, are as follows:

1. Whether under the facts of this case, the evidence of Dorothy Pete, as to prior malfunctions of the warning gate protecting the U. S. Route 13 at the grade crossing of the Pennsylvania Railroad track should have been admitted.

2. Whether under the fact (sic) of this case, the photographs marked plaintiff\'s Exhibits 4, 5, & 6, taken a few hours after collision, showing undisturbed physical facts including skid marks of plaintiff decedent\'s vehicle, should have been admitted even though Naval Investigator Powell appeared in picture.

3. Whether under the facts and applicable law, the Court\'s charge was erroneous, misleading to the jury and prejudicial to the plaintiff.

The first ground assigned is that the court should have allowed the testimony of Dorothy Pete to go...