144 Va. 185 | Va. | 1926
delivered the opinion of the court-
Upon the trial of the action in the Circuit Court of Nansemond county at the October term, 1924, there was a verdict in favor of the plaintiff in the sum of $5,000.
Defendant moved the court to set aside the verdict on the ground that it was contrary to the law and the evidence, and because it was without evidence to support it.
The trial court sustained this motion, set aside the verdict, and entered judgment for the defendant. Exception was duly taken to this action of the court and the error complained of in this regard is the only question before this court for review.
The real and only question at issue is whether there was sufficient evidence to carry to the jury the question as to whether the defendant gave the statutory signals as its train approached the crossing where the collision between defendant’s engine and plaintiff’s intestate’s automobile occurred.
The trial court thought that, in spite of the jury’s verdict, there was not enough evidence as a matter of law- to justify the finding that the statutory signals were not given.
Section 3958 of the Code of 1919 provides that “every railroad company, whose line is operated by steam, shall provide each locomotive engine passing upon its road with a bell of ordinary size, and steam
If the defendant failed to give the signals as required by the statute, and there was any causal relation between the failure so to do and the accident (and this latter question was not raised, and it would have been a question for the jury if it had been raised in this case), the plaintiff was entitled to recover, even though he was guilty of contributory neghy^ee.
Section 3959 of the Code of 1919 provides: “1 i ¿he 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.”
It was conceded in the instant case that the plaintiff was guilty of contributory negligence.
The facts of the ease pertinent to the sole issue in the case are as follows: Plaintiff’s intestate (with one Millner) was driving a Dodge coupe along the con
Upon his examination in chief he testified: “We drove along up the road, and when we got to the crossing we could see a freight train coming. We drove
They evidently did not hear the whistle blow or the bell ring. The engineer and fireman testified that the whistle blew for the crossing, and that thereafter the bell was rung until the crossing was reached. There was testimony of other witnesses corroborating these witnesses. On the other hand there were several parties in automobiles just behind the Dodge coupe occupied by plaintiff’s intestate and Millner whose evidence is in conflict with that of the engineer and firem,an.
T. A. Gillette, who was seated in an automobile a few yards behind the Dodge coupe, waiting for the freight train to pass, testified: “I was paying attention to the (passenger) train. I heard the train when it first blew, * * the regular mile whistle blow, one long blow. It didp’t blow any more until it blew the distress whistle * * aboiit 100 feet from the crossing.”
W. D. Simmons, who occupied the car with Gillette, stated in response to the question:
“Q. When you first looked down the track and saw the train coming, did yon hear any whistle or bell ringing?
“A. Not when I first heard the train, but in a second or two she began to blow the distress signals. I saw the train before she began to blow the signals, but .about that time she began to blow the distress signals.
“Q. Did you hear any bell?
“A. No; I didn’t hear any bell. I don’t say it didn’t .ring, but I didn’t hear it.”
It will be noted that this witness heard the train
Bettie Harris, who was riding in a Paige car, going at the rate of about fifteen miles per hour approaching the crossing, saw the train when it first blew and watched it until it reached the crossing. In response to-questions propounded by counsel for defendant, she testified:
“Q. You were not paying much at.tent.ion to whether the bell was ringing or not?
“A. We were so close if the bell had been ringing we-would have heard it. We heard the train running, and we could have heard the bell.
“Q. You think you could have heard it?
“A. Yes, sir.
“Q. Bu,t you have no recollection of having heard the bell?
“A. No, sir. Mr. Corbitt, if any bell had been ringing we would have heard it. We would have heard it.”
There were other witnesses who testified that they did not hear the bell ring or the whistle blow, but who would no.t swear that the bell was not rung.
We think this evidence was sufficient to carry the-question to the jury, and that their finding was conclusive.
In Director General v. Pence's Adm’x, 135 Va. 329, 116 S. E. 351, this court said: “As to whether the-statutory signals were given, the evidence is in this condition: The engineer and fireman, who are more or less corroborated by a number of witnesses, most of them employees of the dqfendant company, but some of them no.t connected with the road in any way, testified that the crossing signal was sounded and that the-bell was rung in full compliance with the statute. A
In the instant case we think that while most of the evidence that the bell was not rung or the whistle blown as required by the statute was of a negative -character, yet taken in connection with the very positive statements of T. A. Gillette and Bettie Harris, witnesses who were shown to have been in a position to hear and see, and who were shown to be attentive and listening, a conflict in the evidence on this point was raised sufficient to justify its submission to the jury.
Two interesting cases recently decided by the Special Court of Appeals very well illustrate the application of the statutes under consideration in the instant case, to facts closely similar to those here disclosed, where recovery was allowed, or distinguishable from the facts here, where recovery was denied.
In Gregory v. Seaboard Air Line R. Co., 142 Va. 750, 128 S. E. 272, a verdict for the plaintiff was set aside by the trial court and judgment entered for the defendant. In reversing the trial court, Judge Christian says: “The evidence of the defendant tended to prove that the crossing signals were sounded as required by statute; that the roar of the train could be heard for nearly a mile; that the station signal was .sounded about a mile from the crossing; that a person
In Etheridge v. Norfolk Southern R. Co., 143 Va. 789, 129 S. E. 680 (a crossing accident case in which. Judge Holt wrote the opinion), the trial court, in an instruction approved by the Special Court of Appeals, submitted the question as to whether the defendant gave the statutory signals, and the question of comparative negligence, to the jury, and the jury found for the defendant. The judgment was affirmed.
In the instant case, the question as to whether the statutory signals were given was for the jury, and. their verdict settles the issue against the defendant.
Under section 3959 of the Code of 1919, if the signals required are not given, the failure to give them is negligence. If the defendant here failed to give the crossing signals as required (and the jury so found), there is no evidence in this case to rebut this presumption, especially as there is a total absence of evidence-
Tffe trial court was, therefore, right in submitting' the case to the jury, first on the issue as to whether defendant gave the signals, and if not, then on the comparative negligence doctrine, but it erred, we think, in setting aside the verdict and entering judgment for the defendant. We are of opinion, therefore, to reverse the judgment rendered herein in the circuit court, and to enter judgment for the plaintiff.
Reversed.