155 Va. 863 | Va. | 1931
delivered the opinion of the court.
This is an action to recover damages for'personal injuries and for the loss .of an automobile sustained at a grade crossing by a collision between an automobile driven by' the defendant in error and a freight train operated by the plaintiff in error. There was a verdict and judgment for the plaintiff below; the railway company assigns error. The parties will be referred to in the positions they occupied in the trial court. \
The physical facts at and around the crossing are 'as follows. The right of way of the defendant company extends approximately east and west, with the public highway
The evidence is in conflict as to whether the crossing signals were given.. The verdict of the jury settles this conflict against the defendant.
There are numerous errors assigned, but in our view of the case it is only necessary to consider whether there was any causal connection between the negligence of the defendant and the injury the plaintiff suffered.
The accident occurred between 8:45 and 9:15 on the night of March 20, 1928. The plaintiff came out of Campbell’s store and started his Chevrolet car, which was parked about fifteen feet in front of the store and facing the east, turned around, and attempted to cross the right of way from the south. He was struck by a freight engine pulling from twenty-five to thirty freight cars.
The defendant contends that the evidence of the plaintiff himself conclusively shows that his negligence was the sole proximate cause of the injury. He accounts for the accident thus:
"Q. Tell what you did when you started across the crossing.
“A. I started across; I looked, I don’t know how many feet, but just before I got to the side-track I looked good both ways, didn’t hear any train, didn’t hear a sound. I was still in second gear. I pulled up the grade and looked
“Q. You don’t know how far the train was from you when the light struck you?
“A. No, but it was not very far. There is a curve around there. It was throwing the light the other way all the time. As soon as it straightened up it was right at me. When it threw the light on me I knew the train was right at me.
“Q. It was throwing the light towards Jacob’s store?
“A. Yes, sir.
“Q.‘ The light did not hit you until just before it struck you?
“A. It looked like it was about ten or five yards.
“Q. Was there anything at Campbell’s store which would interfere with your seeing clearly the light coming up the track—any light at Campbell’s store?
“A. Nothing but the light he had.” (Italics supplied.)
He stated further that he was running very slowly, about two or three miles an hour, and as he reached the first rail of the side-track increased his speed to about five miles an hour, and that at the speed he was going he could have stopped his car within two feet.
“Q. Now, Mr. Barlow, the first track that you passed, which I believe is known as the passing-track, you didn’t see any train or any cars on that track, did you?
“A. I don’t remember seeing any.
“Q. You saw the headlight on the engine?
“Q. It was a very strong light, was it?
“A. Yes, sir.”
No one knows whether the plaintiff looked, and continued to look, for trains as he neared the tracks except the plaintiff himself. We accept, then, as an established fact that as he approached the main-line track the plaintiff looked and continued to look for trains. From his evidence, however, it will be seen that his account of what he saw is not clear and positive. He says that the train was throwing the light the other way all the time, as the headlight straightened up the train was right on him. When asked the direct question if he saw the headlight of the engine his answer was: “I don’t remember. The light blinded me. I saw it coming around in my face.” And again he said: “It was so dark down that track, either this light from Jacob’s store or this light from the train was over there, I don’t know which it was. It was dark down there; you couldn’t see anything.”
Jacob’s store is. about 100 feet north of the main-line track, from a point 275 feet east of the crossing. If the light from the engine was shining on Jacob’s store when the plaintiff was within forty feet of the main-line track the engine was necessarily east of the depot and some distance from the crossing, in which event, at the speed the train was running, the plaintiff would have had ample time to cross the track in safety.
It is contended, however, in behalf of the plaintiff that he did not see the light from the on-coming train, and there are two reasons advanced in explanation of his failure to see. One is that the light at Campbell’s store obstructed his vision. The proof shows that on the north side of the store, toward the railway right of way and back from the
The uncontradicted evidence shows that the train was approaching the crossing on a curve at a speed of fifteen miles an hour. The degree of the curve is not given. The plaintiff was familiar with this crossing and knew the curve was there. The evidence further shows that the rays from the headlight at a distance of from fifty to seventy-five feet from the engine were eighty feet wide, and expanded as the distance from the engine increased. A' quarter of a mile from the engine an object within the light radius as large as a man could be seen. As the engine neared the crossing the rays of light were directly in front of the plaintiff and if not shining on the track were swinging towards him.
Comparing the respective speed at which the train and the automobile were traveling we find that when the automobile was thirty feet from the center of the main-fine track the train was five times as far away and approaching five times as rapidly, and yet the plaintiff claims he did not see the headlight or rays of light therefrom and was unaware of the approaching train. Under these circumstances to believe that the plaintiff looked, and continued to look, and yet failed to observe the on-coming train is contrary to the common experience of mankind.
This court, in C. & O. Ry. Co. v. Anderson, 93 Va. 665, 25 S. E. 947, 950, held that notwithstanding the rule re
In Artz v. Railroad Co., 34 Ia. 153, 159, it is said: “A man may possibly think he sees an object which has no existence in fact, but which it may be difficult, if not impossible, to prove did not exist, or was not seen. But an object and power of sight being conceded, the one may not negative the other.” See Maryland v. Railroad Co., 123 Pa. 487, 16 Atl. 623, 624, 10 Am. St. Rep. 541; Payne v. Railroad Co., 136 Mo. 562, 38 S. W. 308; Railroad Co. v. Pounds, 27 C. C. A. 112, 82 Fed. 217.
In Moore on Facts, section 160, citing the case of Hook v. Missouri Pac. R. Co., 162 Mo. 569, 63 S. W. 360, 366, it is said: “Courts are not so deaf to the voice of nature or so blind to the laws of physics that every utterance of a witness in derogation of these laws will be treated as testimony of probative value because of its utterance. A court will treat that as unsaid by a witness which in the very nature of things could not be said.”
In the case of N. & W. Ry. Co. v. Strickler, 118 Va. 153, 86 S. E. 824, 825, it is said: “It is impossible that the plaintiff could have traversed the thirty feet, listening and looking, over a clear track of 1,500 feet, and not have seen an approaching motor truck until it was too near for him to stop short of the track, or for the truck to avoid the collision. He says that his vision was good. That he looked, as claimed, continuously while passing over the thirty feet, and did not see the motor truck approaching
“This court has repeatedly declared that courts are not required to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible. Though the case be heard as upon a demurrer to the evidence, the court will not stultify itself by allowing a verdict to stand, although there may be evidence tending to support it, when the physical facts demonstrate such evidence to be untrue, and the verdict to be unjust and unsupported in law and in fact.” C. & O. Ry. Co. v. Anderson, 93 Va. 650, 25 S. E. 947; Harvey v. Commonwealth, 103 Va. 850, 49 S. E. 481; N. & W. Ry. Co. v. Crowe’s Adm’r, 110 Va. 798, 67 S. E. 518; Pennsylvania R. Co. v. Jenkins, 119 Va. 186, 89 S. E. 96, 97; Southern Ry. Co. v. Mason, 119 Va. 256, 89 S. E. 225, 229; Virginia & S. W. Ry. Co. v. Skinner, and Virginia & S. W. Ry. Co. v. Harris, 119 Va. 843, 89 S. E. 887, 888; Hancock v. N. & W. Ry. Co., 149 Va. 829, 141 S. E. 849; N. & W. Ry. Co. v. Hardy, 152 Va. 783, 148 S. E. 839.
The plaintiff, while not conceding that he was aware of the on-coming train, insists that his case is controlled by the following Virginia decisions:
In the case of Etheridge v. N. So. Ry. Co., 143 Va. 789, 129 S. E. 680, Etheridge in broad-open daylight approached a crossing without looking in either direction for the approach of the train. He relied upon an automatic crossing signal to warn him of the danger and was unaware of the approach of the train until it was too late for him to stop his car and he ran into the side of the train and was injured. The court held that he was guilty of negligence, and whether his negligence was the sole proximate cause of the injury was a question for the jury.
C. & O. v. Gayle, 132 Va. 433, 435, 112 S. E. 785. The evidence was that the driver of the machine was lulled into a sense of security because the stationary warning bell was not ringing and he did not discover the approaching train until the danger was imminent and the injury unavoidable. There is no evidence that the plaintiff’s driver in that case looked or listened for the approach of the train. The inference follows that if the statutory signals had been given he would have heard them and thus been made aware of the danger.
N. & W. Ry. Co. v. Hardy, 152 Va. 783, 148 S. E. 839, supra. The facts in that case were that Hardy was killed
The case of So. Ry. Co. v. Johnson, 151 Va. 345, 146 S. E. 363, 365, presents a situation very similar to that presented in the Hardy Case, except that the collision occurred at night. The driver of the machine was killed.' The jury found that no signals were given and, as in the Hardy Case, there was no evidence that the driver looked or that he was in any manner aware of the approaching train. The limitation upon the right to recovery was stated thus: “If failure to give the signals in any way contributed to the accident, then, however grossly negligent the driver was, he is entitled under section 3959 to recover, subject to mitigation of damages in proportion to his negligence.”
This court has consistently construed section 3959, Code, to mean that there must be a causal connection between the failure to give the statutory signals and the injury, but in no case has a recovery been allowed where the undisputed evidence showed that the plaintiff’s negligence was the sole proximate cause of the collision. If the plaintiff sees that the train is approaching, the blowing of the whistle and the ringing of the bell can give him no further information, and if he attempts to cross the track and is injured the accident is the result of his own negligence,
It appears from the evidence that the verdict of the jury and the judgment of the court are plainly wrong. The judgment must be reversed, the verdict of the jury set aside, and final judgment will be here entered for the plaintiff in error.
Reversed.