152 Va. 264 | Va. | 1929
delivered the opinion of the court.
This action was brought by notice of motion by the personal representative of Leatha Underwood, deceased, to recover damages for the death of his intestate, caused by the alleged negligence of the defendant railway company. The basis of recovery is set forth in the notice of motion from which we make the following extract:
“That prior to the construction of your railway, the public highway in Charlotte county, Virginia, about two miles southwest of Phenix, ran some three to five hundred feet northeast of the point at which the highway, as it now exists, and as changed by you and your predecessors, the Tidewater Railway Company, crosses your right of way and the tracks of an overhead bridge, and was perfectly safe and convenient, there being no railway then existing to be crossed at grade overhead or underneath.
“That on or about the........day of..........., 19. ., at said point on your right of way in Charlotte county, Virginia, and about two miles southwest of Phenix, you or your predecessor, the Tidewater Railway Company, to whose rights, privileges, franchises and duties you succeeded, with the consent of the Board of Supervisors of Charlotte county, obtained as above set out, changed the location of the public highway — -
“That on or about the 6th day of September, 1926, the plaintiff’s intestate was travelling along the highway, from Phenix on the way towards Lynchburg, traveling in the rear seat of a five passenger Chevrolet automobile, about midnight, towards Brookneal, which
Upon the trial of the case a verdict was rendered in favor of the plaintiff, the trial court entered judgment thereon and to that judgment this writ of error was awarded. Before stating the facts of the case we will dispose of the contention of the defendant that the burden of maintaining the crossing was upon the highway authorities and not upon the defendant. Section 3886 of the Code which provides for the construction of highways over a railroad contains the following language: ‘‘ When the crossing is constructed above the track of said railroad the approaches and structures shall be safe, convenient and substantial, and when the crossing is constructed beneath said tracks the said county road and all necessary drains and ditches shall be put in good permanent condition, and the structures supporting the tracks of the railroad shall be safe, permanent and substantial. * * * * *. After said crossing has been constructed the corporation whose track or work is to be crossed shall maintain the same.”
In 3 Elliott on Railroads (3d ed.) page 1575, it is said:
“The railway company must erect and maintian such structures as are reasonably necessary to enable travelers to get on, off, and over the crossing in safety. * * *. And where the construction of the railroad caused a cut or fill in the highway so as to make it dangerous for travel unless protected, it will be the duty of the company to erect proper guard rails to keep travelers from falling into the cut or off the embankment. Barriers or guard rails in a proper case are
Passing upon this identical question in Virginian Railway Co. v. Farr, 147 Va. 217, 136 S. E. 668, West, J., said:
“In the instant case, the county road is thirty, and the traveled portion thereof twenty feet wide. The company dug a cut across the road ninety-eight feet wide and twenty-two feet deep, over which it built a bridge only eighteen feet wide. The road was on the company’s right of way' for more than seventy feet from the bridge, and approached the bridge nearly at grade. The company’s right of way on each side of the road was level and free from bushes and weeds. There was nothing on the east side of the road to hinder travelers on the highway who might, from any cause, be diverted from the road to the right of way, from going over the edge of the embankment into the cut. While the passage over the crossing may have been, when the bridge was built, reasonably safe for a few slow horse-driven vehicles, it cannot be said to be safe under present day conditions when about 300 fast moving automobiles are passing over the road, night and day, in twenty-four hours.
“It was the duty of the defendant to erect and maintain fences, guard rails, or other obstructions, for the protection of the traveling public against the danger of driving into the cut. Without the cut, or with it properly guarded, the accident could not have occurred.
“In an opinion handed down today in Norfolk & Western Railway Company v. James [147 Va. 178], 136 S. E. 660, in which the facts are almost identical with those in the instant case, we held the company guilty of negligence in its failure to erect and maintain a
Due to the failure of the defendant to erect and maintain such necessary structures as would afford ample protection to the traveling public at the point of accident it was as a matter of law guilty of actionable negligence.
It is also contended by the defendant that the verdict should be set aside and judgment entered for defendant because of the contributory negligence of the deceased. The record shows that D. E. Rakes, the driver of the automobile owned by Leatha Underwood, had been convicted in the circuit court of Lunenburg county of a violation of the prohibition law and had been sentenced to the penitentiary. On Friday preceding the accident, Tom Shook, accompanied by Gatha Josey and others, went to Lunenburg courthouse to see Rakes who was then in jail. On this trip Gatha Josey took with her a hack saw which she threw up into the window of the jail. On Sunday morning Tom Shook, Mrs. Underwood and Gatha Josey returned to Lunenburg jail and Rakes threw a note out of the window to Gatha Josey telling her that he would break out of jail that night and asking her to meet him near Lunenburg courthouse about nine o’clock. On Sunday night about nine o’clock Mrs. Underwood, Gatha Josey, Shook and others went to the neighborhood of Lunenburg courthouse and there found Rakes who had escaped from the jail, and took him in their car. They then returned to the house of Mrs. Josey who was the mother of Gatha Josey and Mrs. Underwood, the plaintiff’s intestate.
About twelve o’clock that night they left Mrs. Josey’s house, starting for Lynchburg. The party
. The map introduced in evidence by the plaintiff shows the general physical situation. The road makes a curve of 32-20 degrees just before the bridge is reached. At a point seventy-eight feet from the bridge there is a ditch or depression along the right side of the road from eight to ten inches deep. On the side of this ditch or depression there were weeds, grass and small
There is evidence tending to show that the party passed Charlotte courthouse a short time before the accident going at a terrific rate of speed. In Phenix the car seems to have slowed down. About a mile from the point of the accident the car stopped. It passed the house of a Mrs. Carden who lived near the road and near the point of the accident, going at a very fast rate of speed. After the accident, pieces of fruit jars were found in the cut and around the scene of the wreck. These fruit jars smelled strongly of whiskey.
The law of the case is well settled. Relying upon the contributory negligence of plaintiff’s intestate to defeat a recovery, the burden was upon the defendant to prove contributory negligence by a preponderance of the evidence, unless the evidence for the plaintiff
It must be conceded that Leatha Underwood, and Rakes, the driver of her automobile, were engaged in a joint enterprise and if Rakes was guilty of contributory negligence then his negligence is imputable' to Mrs. Underwood. The trial court recognized this principle and without objection gave the following-instruction:
“The court instructs the jury that if they shall believe from the evidence that the plaintiff’s intestate,. Mrs. Underwood, was the owner of the automobile-that went into the defendant’s cut, that Mrs. Underwood and the other occupants of the car were aiding- and participating in the escape of J. C. Rakes from jail, where he was lawfully confined, and that they were on their way to Lynchburg to enable Mrs. Underwood to aid or assist her husband, who was there confined in jail, to make his escape from jail, and that at. the time of the accident J. C. Rakes was driving the-automobile at the request of or with the permission of Mrs. Underwood the jury are instructed that any negligence or reckless conduct of Rakes in driving said, automobile which may have caused or contributed to the accident, is imputable to Mrs. Underwood, and she-is as much responsible for the manner in which said, automobile was being driven as if she herself had been driving the automobile at the time of the accident which resulted in her injury and death.”
It is unfortunate that Gatha Josey, the only person, who could have thrown any light on the rate of speed.
In Chesapeake & Ohio Ry. Co. v. Heath, 103 Va. 64, 48 S. E. 508, it is said:
“The party who affirms negligence must establish it by proof sufficient to satisfy reasonable and well balanced minds. The evidence must show more than a probability of a negligent act. An inference cannot be drawn from a presumption, but must be founded upon some fact legally established. This court has repeatedly held that when liability depends upon carelessness or fault of a person, or his agents, the right of recovery depends upon the same being shown by competent evidence, and it is incumbent upon such a plaintiff to furnish evidence to show how and why the accident occurred — some fact or facts by which it can be determined by the jury, and not be left entirely to conjecture, guess or random judgment, upon mere supposition, without a single known fact.”
Whether the negligent act of the defendant in failing to properly guard the approach to the bridge was the sole or even a contributing cause of the accident is a matter of pure conjecture. In Virginian Ry. Co. v. Farr, supra, relied upon by plaintiff, there was affirmative evidence that the county road, which existed prior to the construction of the railroad, was changed by the railway company, and that the railroad company excavated its cut across the location of an existing road. It was also shown that the road made practically a right angle turn and that the physical condition <of the ground at that point was such that one driving along the road would not observe that the road made a turn on account of the fact that the land was free of underbrush and presented the appearance of being a
There is but one satisfactory conclusion which can be reached in this case and that is that the contributory negligence of the plaintiff’s intestate was the proximate cause of the accident. For the reason stated, the judgment of the trial court will be reversed, the verdict of the jury set aside and judgment will be entered in this court for the defendant, the Virginian^Railway Company.
Reversed.