107 Va. 725 | Va. | 1908
delivered the opinion of the court.
This action was brought by the administrator of J. J. Smith, deceased, to recover of the defendant railway company damages for its alleged negligence in causing the death of the plaintiff’s intestate. There was a demurrer to the plaintiff’s evidence, which the circuit court sustained. This judgment we are asked to review and reverse.
The plaintiff’s intestate was killed at a public road crossing, in the county of Eranklin, at a point a little south of Prillaman’s Siding. The crossing is shown to be a dangerous one, the view of the railroad to one approaching the track from the north being cut off on the traveller’s right by a bluff until he is within a short distance of the track. The public road descends until within a short distance of the track, and then rises until the track is reached.
The intestate was driving a wagon, drawn by a pair of mules, and had almost cleared the track, when he was struck by a regularly scheduled freight train, which was behind time. This train ran regularly from Eoanoke in a southerly direction, stopping at Prillaman’s Siding when flagged. The intestate is shown to have been an experienced and careful driver, familiar with
The only eye-witnesses of the accident were the engineer and the fireman. Their uncontradicted evidence is that the deceased approached the crossing standing up, whip in one hand and lines in the other, with the team in a run or gallop. The evidence shows that these employees of the railroad saw the deceased as soon as it was possible for them to do so, that the emergency brakes were immediately applied, and everything possible done to avert the accident, but without avail; and that for some distance before reaching the crossing it was downgrade and the train running twenty-five to thirty-five mile? per hour. A number of witnesses testify to hearing the whistle blow for Prillaman’s Siding, and the noise of the approaching train. The demurrer to the evidence, however, admits that the crossing whistle was not blown, and the act approved Januarv
The negligence of the defendant company in approaching the crossing must be accepted as an established fact; but this negligence does not relieve the traveler on the public highway from vigilance on his part. The duty of such a traveler is to exercise a diligent and watchful care for his own safety. This duty on his part is as imperative as that of the railroad company to look out for him, and to use reasonable care and precaution to .avoid injury to his person or his property at a point of possible collision. The vigilance of the traveler to escape injury is commensurate with that of the railroad company to avoid the in-* Fiction of injury. When the use of his faculties would apprise the traveler of impending or approaching danger, he must exercise those faculties or suffer the consequences. The greater the danger at a particular crossing, the greater the vigilance required of both. Before crossing a railroad, the traveler on the public highway must use his sense of sight and hearing. He must approach the crossing carefully, and must look in every ■direction that the rails run to make sure that the crossing is safe; and his failure to do so will, as a general rule, be deemed negligence. Moreover, since the track is a proclamation of danger to the traveler, he must not only use his eyes and ears, looking and listening in both directions, but he must make the acts -of looking and listening reasonably effective. If a traveler is warned, or by the exercise of care commensurate with the known danger would be warned of the near approach of a railroad train, then it is his duty to keep off the track until it has passed ;
A traveler at a crossing has the right to presume that the company will obey the statute and sound the signal required by law, and to rely on this presumption; but such reliance does not relieve him from care on his part.
These principles, touching the law governing the relative rights of the public and railroad companies at highway crossings, are settled by numerous decisions of this court. Johnson v. C. & O. Ry. Co., 91 Va. 171, 2.1 S. E. 238; B. & O. R. Co. v. Few’s Ex’or, 94 Va. 82, 26 S. E. 406; W. S. Ry. Co. v. Lacey, 94 Va. 460, 26 S. E. 834; Southern Ry. Co. v. Bryant, 95 Va. 212, 28 S. E. 183; A. & D. Ry. Co. v. Reiger, 95 Va. 418, 28 S. E. 590; Brammer v. N. & 17. Ry. Co., 104 Va. 50, 51 S. E. 211; Stokes v. So. Ry. Co., 104 Va. 817, 52 S. E. 855; So. Ry. Co. v. Jones, 106 Va. 412, 56 S. E. 155.
In the light of the principles settled by these decisions, we are of opinion that the plaintiff’s intestate was negligent in his approach to the crossing in question—so negligent and lacking-in care for his safety as to preclude his right to recover, notwithstanding the negligence of the defendant company in failing to sound the warnings required by law. The law recognizes no gradations of fault in such cases, and where both parties have been guilty of negligence, as a general rule, there can be no recovery. There is really no distinction between negligence in the plaintiff and negligence in the defendant, except that the negligence of the former is called contributory negligence. Richmond Traction Co. v. Martin’s Admr., 102 Va. 209, 45 S. E. 886.
'The conclusion is irresistible, that, when far enough from the crossing for safety, the deceased was moving in a trot or speedy gait, which was lashed into a run as the mules reached the rails, with the hope of crossing the track ahead of the approaching train. This manner of approaching a dangerous crossing was thoughtless negligence, and was the proximate cause which cost the deceased his life. As already seen, the engineer and fireman saw the plaintiff’s intestate approaching and on the track as soon as it was possible to do so, and did all that was possible to avert the accident, but it was too late for them to avoid the collision.
A party approaching a railroad track must not approach at
It is insisted that the deceased was lulled into security hy the failure of- the defendant company to give the required warnings as it approached the crossing; and in support of this contention two cases are relied on—Kimball & Fink v. Friend, 95 Va. 125, 27 S. E. 901 and Railway Co. v. Aldridge, 101 Va. 142, 43 S. E. 333. In both of these cases there was a local agency^ of the railroad company for warning travelers on the public highway of an approaching train, which was out of order and out of place. In Friend’s Case it was a gong, and in Aldridge’s Case it was a watchman. These agencies of notification, immediately on the ground, upon which the traveler had the right to rely, were silent, thus lulling him into a dangerous position from which he could not extricate himself. But we are aware of no Virginia case which holds, that a traveler on the highway may approach a railroad crossing at such speed, if he is driving a team, as will not allow him to make adequate use of such opportunities for looking and listening as the surroundings of the crossing will admit.
The principle is invoked, on behalf of plaintiff in error, that a person in an emergency or great peril is not required to exercise the prudence required of prudent persons under ordinary circumstances. This principle does not apply except in cases where the plaintiff has been placed in the situation of danger by the negligence of the defendant, not united with his own negligence. Southwest Imp. Co. v. Smith’s Admr., 85 Va. 306, 7 S. E. 365, 17 Am. St. Rep. 59. “No such allowance is made in favor of one whose own fault has brought him into the peril which disturbs his judgment.” Shear. & Red. on Neg., Vol. p. 133, sec. 89.
It is a necessary conclusion from the evidence proper to be considered on the demurrer to the evidence, that the plaintiff’s
Affirmed.