Wright v. Norfolk and Western Ry. Co., 921018

• Decision Date: 26 February 1993
• Docket Number: No. 921018,921018
• Citation: 427 S.E.2d 724,245 Va. 160
• Court: Virginia Supreme Court
• Parties: Mattie B. WRIGHT, et al., etc. v. NORFOLK AND WESTERN RAILWAY COMPANY. Record

Page 724

427 S.E.2d 724

245 Va. 160

Mattie B. WRIGHT, et al., etc. v. NORFOLK AND WESTERN RAILWAY COMPANY.

Record No. 921018.

Supreme Court of Virginia.

Feb. 26, 1993.

Thomas L. Phillips, Jr., Rustburg, S.J. Thompson, Jr., Lynchburg (Thomas L. Phillips, Rustburg, Joy Lee Price, Lynchburg, Phillips, Phillips, Phillips & Morrison, Rustburg, Caskie & Frost, Lynchburg, on briefs), for appellants.

John D. Eure, Roanoke (James F. Johnson, Joseph A. Matthews, Jr., Johnson, Ayers & Matthews, on brief), for appellee.

Present: All the Justices

COMPTON, Justice.

On May 12, 1988, Riley E. Wright was severely injured in a collision between the dump truck he was operating and a Norfolk and Western Railway Company train at a public crossing. Wright's guardians filed this negligence action against N & W seeking damages on behalf of their ward, a disabled person. A jury returned a verdict in favor of the plaintiffs for $4 million.

Sustaining a post-trial motion, the court below set the verdict aside and entered judgment for the defendant. We awarded the plaintiffs an appeal and also agreed to consider the defendant's assignments of cross-error. The principal issue on appeal, however, is whether the trial court correctly ruled that Wright was guilty of contributory negligence as a matter of law.

Although the trial court set the verdict aside, we shall accord the plaintiffs, the recipients of the jury verdict, the benefit of any substantial conflicts in the evidence and of all reasonable inferences that may be drawn from the facts. Holland v. Shively, 243 Va. 308, 309, 415 S.E.2d 222, 223 (1992). The evidence is virtually undisputed.

The accident occurred in the town of Brookneal where Maddox Street crosses N & W's main line. The track runs north and south, and the two-way street runs generally east and west. U.S. Highway 501, a north-south roadway, closely parallels the track to the east. At the crossing, Maddox Street intersects Route 501 about 20 feet east of the track and ends there.

At the scene, the terrain generally is level, and the track is straight for 2,150 feet north from the crossing. Maddox Street is not perpendicular to the track; it angles to the southwest from its intersection with Route 501.

The crossing was marked by crossbucks (signal boards) and an advance railroad warning sign ("a yellow sign that had RR on it"). There were no other signals, warning devices, or traffic controls in place at or near the crossing.

The collision took place on a Thursday about 12:45 p.m. The weather was clear, hot, and humid. The roadways were dry.

At the time, the train, composed of 17 cars loaded with wood chips and pulpwood, was moving southbound through Brookneal. Travelling approximately 34 miles per hour, the train approached the crossing with the headlight burning on the engine. Also, an air-operated bell was ringing continuously. In addition, an air-operated whistle was sounding "two longs, a short and a long."

At the same time, Wright, who was operating his employer's truck alone, was proceeding southbound on Route 501 approaching the crossing. Wright's destination was a lumber yard located just west of the crossing on Maddox Street.

The vehicle was a tandem dump truck with "front axles and ... a dual axle at the back." Its overall length was "around 25 feet." The unit included a solid metal dump body that "sits approximately two inches behind the cab" preventing the operator from seeing "out of" the rear cab window. The vehicle had "regular West Coast" rear view mirrors "set to show what's behind the truck." The truck, in good operating condition, was equipped with an air conditioner, an AM/FM stereo radio, and a CB radio. It had a capacity of 53,500 pounds and was loaded with gravel.

Wright, age 36 and an experienced dump truck operator, had lived less than a mile from the crossing for ten years. On the day of the accident, he "had hauled ... four loads of gravel" over the crossing to the lumber yard prior to the incident; the previous day, he had delivered five loads to the same destination.

Eyewitness testimony revealed that Wright approached the crossing behind another southbound dump truck. The first truck turned from Route 501 and stopped on Maddox Street east of the crossing. Wright stopped his truck behind the first vehicle. After the first truck moved over the crossing, clearing the track, Wright drove his truck onto the track in front of the train when the train's engine was less than ten feet from the truck. The truck travelled at a slow, steady speed, less than five miles per hour, to a point where the train engine struck the truck in the center of its right side, demolishing it and injuring Wright.

One eyewitness pointed out that there was "a slight incline from 501 up to the crossing." He stated that "as the truck was coming off of 501 onto Maddox the front end of the truck sort of shifted downward as if he were [braking] or changing gears." The witness said, "I had the thought he was going to stop and then the truck, the front end, raised up as he accelerated onto the tracks." The train engineer testified that "just before hitting the edge of the crossing, like six feet, the truck whipped in front of me. It was no time to do anything."

The witnesses did not see any brake lights "come on" on the truck before the impact. The window on the right side of the truck's cab was closed at the time of the collision. Although Wright did not testify due to his disability, his employer testified that Wright, whose hobby was country music, normally operated the truck's air conditioner on hot days and normally "kept his radio on and CB on."

Expert testimony offered by the plaintiffs established that the crossing was not "reasonably safe" and that it was "ultradangerous, or an ultrahazardous crossing." This opinion was based upon "the sight distance available to the motorist, the geometry of the crossing, the type and mix of the traffic that uses the crossing, the speed of the trains, the condition of the tracks and crossing." According to the expert, "All of those in conjunction with the type of protection afforded at the crossing, which is essentially the cross bucks, made it an ultrahazardous crossing."

Another expert opined that, because of the angle of Maddox Street relative to the track, the length of the truck, and the radius of the turn, Wright's view north on the track was severely limited as he turned onto the crossing. This was because the driver was unable, without making a wide turn across the center line of Maddox Street, to bring the truck to a position perpendicular to the track to have a clear view north. Instead, because of the "geometry of that crossing," Wright could only lean forward in his driver's seat and try to look through the right side window, his view through the rear window of the cab being completely blocked.

The expert also measured scientifically the sound level inside a similar truck's cab. He determined, using various assumptions (e.g. air conditioner off or on) that "because of the limited field of view to the right-hand side from this truck and the distances involved and the geometry of the crossing, it was physically impossible for Riley Wright to have heard or seen that train as he approached the crossing in time to avoid the collision, assuming that they both happened to be there at the time, which they did, of course."

Prior to trial, the defendant filed a motion contending that federal law preempted the plaintiffs' claim that the Maddox Street crossing was equipped with inadequate crossing protection devices. The trial court took this motion under advisement.

During trial, the defendant moved the court to strike the plaintiffs' evidence at the conclusion of the plaintiffs' case-in-chief. The grounds of the motion were that the plaintiffs failed to establish, prima facie, the defendant's primary negligence, and that the plaintiffs' own evidence established Wright was guilty of contributory negligence as a matter of law. This motion was overruled. The trial court, after stating, "I'm very troubled, very troubled by Mr. Wright's conduct," decided to allow the contributory negligence issue to go to the jury. The trial court noted this Court's admonition: "It is a drastic measure to strike the evidence at the end of a plaintiff's case." Higgins v. Bowdoin, 238 Va. 134, 141, 380 S.E.2d 904, 908 (1989). The trial court also mentioned that plaintiffs' counsel had represented that approximately $45,000 had been expended in connection with the preparation and trial of the case. Additionally, the court noted that it still had the preemption issue under advisement.

At that stage of the trial, the court also ruled there was no merit to the plaintiffs' claim that the defendant was guilty of willful and wanton misconduct; the court stated it would not instruct on that issue.

At the conclusion of all the evidence, the plaintiffs moved to strike the defendant's evidence on the ground that primary negligence had been proved as a matter of law. The defendant renewed its previous motion to strike. The trial court overruled both motions, stating "there's a strong likelihood of contributory negligence, but I'm not certain of that."

After verdict, the court considered memoranda of law and oral argument on defendant's motion to set aside. For the first time, during a hearing on the post-trial motion held three and one-half months after verdict, the plaintiffs asserted that the defendant had waived its right to rely on the proposition that Wright was guilty of contributory negligence as a matter of law. After further briefing, the trial court, in a letter opinion, sustained the defendant's motion. The court ruled that no waiver had occurred and that Wright was guilty of contributory negligence as a matter of law. In addition, the court ruled against the defendant on the preemption issue.

On appeal, the plaintiffs contend that the trial court erred in its...