Wray v. Norfolk & W. Ry. Co., 3657

• Decision Date: 06 September 1950
• Docket Number: No. 3657,3657
• Citation: 61 S.E.2d 65,191 Va. 212
• Court: Virginia Supreme Court
• Parties: RUTH H. WRAY, ADMINISTRATRIX, ETC. v. NORFOLK & WESTERN RAILWAY COMPANY. Record

Page 65

61 S.E.2d 65

191 Va. 212

RUTH H. WRAY, ADMINISTRATRIX, ETC. v. NORFOLK & WESTERN RAILWAY COMPANY.

Record No. 3657.

Supreme Court of Appeals of Virginia

September 6, 1950.

Bohannan, Bohannan & Kinsey, for the plaintiff in error.

J. M. Townsend and Morton G. Goode, for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Ruth H. Wray, administratrix of the estate of her husband, Rodney Atwell Wray, instituted this action against the Norfolk & Western Railway Company for damages for the wrongful death of decedent, which resulted when the truck he was driving was struck by a Norfolk & Western passenger train at a grade crossing in the city of Petersburg. From the judgment entered on the verdict for defendant plaintiff obtained this writ of error.

The Norfolk & Western Railway Company, hereinafter designated 'defendant,' at the crossing in question, maintains three separate tracks on its right of way extending east and west.

The city of Petersburg owns the only tract of land in this vicinity, which is bounded on the south by defendant's right of way and on the north by the Appomattox river. In 1942 the City decided to use this tract of land as a 'city dump.' At its request defendant constructed a grade crossing over its right of way for the purpose of giving the city ingress and egress to the land which was thereafter used as a 'city dump.'

For several years prior to the date of the accident Rodney Atwell Wray had been employed as a driver of a garbage truck for Petersburg, during which time he used this crossing daily, except Sundays and holidays. On January 17, 1948, Wray, with two helpers, had driven over the crossing to the dump, unloaded the garbage, and approached the crossing from the north. Claiborne Cook, one of his helpers, was riding in the cab with him. John Bonner, the other helper, was standing in the body of the truck, leaning on the cab. Wray brought his truck to a stop within 45 feet of the nearest rail to him. From this position he had an unobstructed view of the tracks to the east of approximately 1500 feet. At the time, and within this unobstructed view, defendant's passenger train, known as the 'Powhatan Arrow,' was approaching on the middle track at a speed of 25 miles an hour. Wray, without looking in an easterly direction, or apparently without seeing the train, started his truck and attempted to negotiate the crossing. As he did so, the front of the engine collided with the truck with such force that the truck was carried west some distance. Wray died within an hour as a result of injuries received in the collision. Claiborne Cook was rendered unconscious and when he regained consciousness, he was unable to remember anything about the accident. Bonner saw the approaching train, knocked on the cab for the purpose of warning the driver of the apparent danger, ran to the rear of the truck and jumped out before the impact, thus escaping injury.

Some evidence was introduced tending to show that the signals required by statute for highway crossings were not given. Several witnesses, including the engineer and fireman in charge of the engine, a telegraph operator in a tower within 100 feet of the crossing, and a clerk of defendant checking cars on the yard, testified positively that crossing signals were given.

The plaintiff's main contention is that the trial court committed reversible error in refusing to submit the question of comparative negligence to the jury. This ruling of the trial court was consistent with its theory of the case: namely, that the doctrine of comparative negligence prescribed by section 56-416 of the 1950 Code was not applicable because the way in question was a private and not a public highway.

On this theory, the negligence of decedent bars plaintiff's right to recover. A traveler upon a highway, who, on approaching a grade crossing, stops his vehicle in a place of safety, apparently for the purpose of looking and listening for trains which may be approaching, and then proceeds upon the tracks at a time when a train in full view is approaching less than 200 feet away, at undiminished speed, is guilty of a reckless disregard of all precautions for his own safety. Among the recent cases in which this principle was applied, see Atlantic Coast Line R. Co. v. Clements, 184 Va. 656, 36 S.E. (2d) 553; Norfolk, etc., R. Co. v. Epling, 189 Va. 551, 53 S.E. (2d) 817; and Butler v. Darden, 189 Va. 459, 53 S.E. (2d) 146.

Section 56-414 of the 1950 Code prescribes the signals to be given by railway trains for grade crossings over a highway 'outside of incorporated cities and towns,' and provides that such trains 'shall give such signals in cities and towns as the legislative authorities thereof may require.'

Chapter 25, sec. 2, of the Code of the city of Petersburg, adopted by the Council on April 15, 1941, provides that any locomotive approaching a street crossing shall begin ringing its bell 50 yards from the street and shall continue to ring it until the train passes over the crossing.

Sec. 56-416 of the 1950 Code provides that 'If the employees in charge of any railroad engine or train fail to give the signals required by law on approaching a grade crossing of a public highway, the fact that a traveler on such highway failed to exercise due care in approaching such crossing shall not bar recovery for an injury to or death of such traveler, nor for an injury to or the destruction of property in his charge, where such injury, death, or destruction results from a collision on such crossing between such engine or train and such traveler or the property in his charge, respectively; but the failure of the traveler to exercise such care, may be considered in mitigation of damages. ' (Italics added.)

It was held in Norfolk, etc., R. Co. v. White, 158 Va. 243, 163 S.E. 530, that the signals required by city ordinance to be given by the employees in charge of a railroad train approaching a public street within the city were within the purview of the foregoing statute, and if such signals were not given and a traveler on the street was injured, the negligence of the injured party would not bar a recovery, but such negligence must be considered in mitigation of damages.

Whether the doctrine of comparative negligence, as provided by the statute, applies, depends upon whether the crossing in question was a link of a public way. The evidence on this issue may be summarized as follows:

The official map of the city of Petersburg, made in 1943, does not show that any public street extends across defendant's right of way in this section of the city. It does show that Bollingbrook street, formerly known as Poythress street, extends east and west, approximately parallel with defendant's right of way. It also shows that Irving street terminates at Bollingbrook street and extends south at right angles therefrom, but does not cross Bollingbrook street or defendant's right of way. These facts appear from several other maps of Petersburg filed as exhibits with the record.

Whitworth Cotten, engineer for Petersburg, testified that he was born in the city in 1908, and that he understood that at some former time Irving street extended across the right of way, but he never saw such a crossing and none had existed in his recollection. Several witnesses for defendant testified that there had been no grade crossing over defendant's right of way at Irving street since 1917. They were not familiar with the situation prior to that time.

A report and plot of lots made by R. D. Budd, city engineer in 1910, for the purpose of sale for delinquent taxes, indicate that the northern end of Irving street did extend across defendant's right of way. However, no witness testified that any crossing at this point had been constructed for and used by the public.

In 1921 the officials of Petersburg requested defendant to construct and maintain a grade crossing permitting the city to extend Irving street over its right of way. This request was refused, on the ground that such a crossing at this point would be too hazardous to justify the public use thereof.

Paul Morton, city manager in 1931, wrote defendant and referred to prior correspondence on the subject of 'replacing the crossing of the tracks in the vicinity of Irving street,' and stated 'My information is that, in order to remove the hazard and liability of crossing these tracks, your company offered the use of your gravel pit, near your main line crossing of the Hopewell highway,' as a garbage and trash dump. Morton concluded his letter in the following language: 'I would appreciate hearing from you promptly whether I am correct in my information and if we may use this gravel pit, otherwise it may be necessary to require the replacement of the crossing, for the use of Swann's Island.'

Defendant granted this request and Petersburg used defendant's sand pit east of Petersburg as a city dump for eleven years thereafter. In 1942 the health authorities of Prince George county notified Petersburg that the continued use of the sand pit for disposal of city garbage and trash constituted a nuisance and requested it to abate the same. Petersburg thereupon invited defendant to send representatives to the site to confer with representatives of Petersburg for the purpose of determining where and when a grade crossing over defendant's right of way might be constructed, which would enable Petersburg to have access to its Swann's Island tract of land for use as a city dump.

There is some conflict in the testimony as to the phraseology and construction of the agreement made by representatives of the parties on this occasion. Defendant refused to construct a crossing as a part of Irving street extended, on the ground that it was too hazardous and that such a crossing would unduly interfere with 'frogs' and switches connecting the different tracks on defendant's railway yard. The parties concede that it was...