118 Va. 755 | Va. | 1915
delivered the opinion of the court.
Ernest Zell was killed on a highway crossing when an automobile in which he was riding was struck by a passenger train owned and operated by the Washington and Old Dominion Railway. His administratrix brought this action and recovered the judgment under review.
There was a demurrer to the declaration, which was overruled by the circuit court, and that action, though earnestly complained of, was plainly right. The ground of the demurrer was the failure to allege that either Zell or Peck, the driver and only other occupant of the automobile, looked and listened for a train before attempting to cross the track. This was a matter of defense which the plaintiff was not required to
At the trial the defendant demurred to the evidence, but the court overruled the same and entered up judgment for the plaintiff upon the .conditional verdict of the jury. This action constitutes the basis of the only other assignment of error.
Zell and Peck, both residents of Alexandria, were intimate friends and associates. Peck owned an automobile in which he and Zell frequently went out together on pleasure trips. Both were familiar with the machine, and were competent drivers. When out together they would sometimes, even on the run, take turn about at the wheel. Zell frequently drove the car when Peck was along, and seems to have been the man who always got it out and ready for a trip. It was not unusual for them to go to Washington together on Sunday, and they were on such a trip when they met their death in the collision above mentioned.
On Saturday night before the Sunday morning of the accident, Peck, who kept a grocery store, left his place about 9 :30 o’clock in his car and in company with Zell. Where they went or what they did between that hour and some time next morning does not appear. The witness, Leachman, who worked at the store and stayed with Peck, retired about 11 o’clock, and the latter had not then returned, but he did come in and go to ■bed some time during the night. At 9:30 next morning Zell came around and waked Peck and Leachman, asked if they were going to sleep all day, and then went out, got the machine from its place and was fixing and cleaning it up while Peck dressed and got his breakfast, which he did in very few
This was a dangerous crossing for travelers coming, as these two men were, from the south, because on that side of the track and west of the highway there was a natural embankment or hill which obstructed the view from the highway of the track and vice versa. Vaidous estimates, not purporting to be'based upon actual measurements or to be absolutely accurate, appear in the record as to the extent and effect of this obstruction, but the question is set at rest by the results of undisputed tests and measurements made by a photographer assisted by an engineer. These tests and measurements, construed most strongly against the defendant, demonstrate that the driver of an automobile, coming north on the highway, could in a perfectly safe and ample stopping distance of the track see .a train approaching from the west at a distance of at least seventy-five feet from the crossing. As he drew nearer the track he could see the train still further west, the track in that direction being straight for
’ A number of grounds of negligence on the part of the railway company are charged in the declaration, chief among which are excessive speed, failure to give the statutory signals for the crossing, running the train backward, failure to keep a lookout for the crossing, and want of proper equipment. It is earnestly contended on behalf of the company that the plaintiff wholly failed to establish any of these grounds. But conceding that there was evidence tending to show negligence on the part of the defendant there can be no recovery by the plaintiff for the reasons hereinafter stated.
The negligence of the driver of the car is perfectly manifest. He had no right to proceed across the track without looking and listening for a train. The greater the danger the greater was the measure of his duty. If he did not see or hear a train when he first reached the point at which the obstruction began to pass from his westward vision along the track, then it was his duty to continue to look and listen until he reached the track. The. very contention made here that he had to be close to the track before he could see any distance to the west emphasizes the importance of caution on his part. If the running of his machine interfered with his hearing or looking, it was his duty to stop and look and listen so as to make looking and listening effective.
Travelers approaching a public crossing must bear in mind
In the latest reported crossing case decided by this court, U. S. Spruce Lumber Co. v. Shumate, cited supra, Judge Card-well, who delivered the opinion, citing a number of authorities, said: “This court has repeatedly held that the duty of looking and listening for approaching trains before crossing a railroad track must be discharged in a way to make looking or listening effectual.” The entire opinion in that case is in point here, for it shows that under the allegations of the declaration there, as under the evidence here, if all the negligence charged against the defendant be taken as true, the accident could not haye occurred without the contributing and concurring negligence of the plaintiff. The case at bar is even a stronger one against the right of recovery than the Shumate Case, because the plaintiff there was riding in a horse-drawn vehicle, and, as we shall see, the authorities hold automobile drivers at crossings to a higher degree of caution than drivers of wagons and other vehicles drawn by horses.
In Chase v. N. Y. Cent., &c. R. Co., 208 Mass. 137, 94 N. E. 377, the court said: “The rules of law applicable to the
This authority is directly applicable to the present case. It affirmatively appears that either of the occupants of the car could stop it very quickly. They approached this dangerous grade crossing, with which they were both familiar, at fifteen miles per hour, and, with what the witness thought was only a slight reduction of speed to avoid the jar in riding rapidly over the track, ran on to the crossing at the rate of from ten to twelve miles an hour. If, as was suggested in the opinion of the Massachusetts court above, they had stopped in six feet of the crossing, as they could safely and easily have done, they would beyond any possible doubt have seen and heard the train before starting their car again. Indeed, even as it was, and without any stop on their part, the train was necessarily within- the range of their vision before they reached the track, since otherwise, at a rate of not over thirty miles per hour, it could not possibly have overtaken them.
In the well-considered case of New York C. & H. R. R. Co. v. Maidment (U. S. Circuit Court of Appeals), 168 Fed. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794, the court said: “With the coming into use of the automobile new questions as to the reciprocal rights and duties of the public and that vehicle have arisen and will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to such crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train, is subjected to slight danger by a crossing foot passenger or a span of
In Brommer v. Penn. R. Co. (U. S. Circuit Court of Appeals), 179 Fed. 577, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924, the court, quoting the above language from the Maidmeni Case, says further: “This rule is conducive to safety and observation and experience have deepened our conviction of its sound
In the case of Southern Railway Co. v. Vaughans Admr., ante, p. 692, 88 S. E. 305, decided by this court today, in which a recovery is upheld in favor of the estate of an automobile driver killed at a crossing where the view was obstructed, the court instructed the jury that it was the duty of the driver to stop, look and listen, and the evidence tended to show that he did stop for that purpose in five feet of the track, but there was a deep cut and a curve in the track near the crossing, and, notwithstanding his caution, he was caught and killed. As already shown, if Peck had stopped near the track as Vaughan did, the accident in this case would have been averted. It will, of course, happen in exceptional cases, as may have been true in Vaughan’s case, that going ahead without looking will afterwards prove to have been the safer course, but when men choose to act upon chance instead of caution in such cases, they violate a general rule of safety established by reason, experience and authority, and are guilty of negligence which will bar a recovery.
There are cases in which the question as to whether the traveler was guilty of negligence in going on the track without looking and listening is one for the jury. This class of cases is discussed and the distinction applicable here indicated by Judge Buchanan in Boyd v. Southern Ry. Co., 115 Va. 11, 78 S. E.
But it is claimed that the negligence of the driver, Peck, cannot be imputed to Zell. Inasmuch as they left Alexandria fifteen minutes before the accident with Peck at the wheel, it is a fair inference that he was still driving the car, but in our view of the case that fact is immaterial, because Zell’s situation did not bring him within the rule applicable to invited guests or passengers as applied in A. & D. R. Co. v. Ironmonger, 95 Va. 625, 632, 29 S. E. 319, but, upon the contrary, brought him within the reason and the terms of the rule that where two persons are engaged in a joint enterprise or adventure in the use of an automobile, even though the enterprise or adventure be only a pleasure trip, the contributory negligence of either, within the scope of the enterprise, will bar a recovery by the other. In this case Zell had taken the lead that morning in the joint project in which they were engaged, and can by no reasonable intendment be classed as an invited guest or passenger in the sense in which those terms are used in the Ironmonger Oase and the many other cases of that type, the authority of which in cases where they apply we recognize, but which are distinguishable in principle from this one.
In the second volume of Ruling Oase Law, sec. 43, p. 1208, after adverting to the variety and contrariety of opinion upon the question of imputing to a passenger the negligence of a driver, the text says: “In spite of these different rules as to whether negligence may be imputed to a guest or passenger in an automobile, there seems to be no difference of opinion as to the rule that where two persons are engaged in a joint enterprise in the use of an automobile, the contributory negligence of one will bar a recovery by either, if it is a matter within the scope
That this rule applies to an ordinary pleasure ride would seem clear as a matter of reason, and is recognized in the authorities. “Thus in a case where two persons went out in a row boat, it was held that one of them was imputable with the contributory negligence of the other—who, with his consent, did all the rowing and had charge of the boat—in getting in front of a steamer having the right of way, so as to bar a recovery for resulting injuries.” White’s Supplement (1907) to Thompson on Neg., sec. 506, citing Yarnold v. Bowers, 186 Mass. 396, 71 N. E. 799. To the same effect is Beaucage v. Mercer, supra.
The undisputed evidence here presents a case of a joint adventure by Zell and Peck, and brings them both within the influence of the rule announced in the foregoing authorities.
We are of opinion that the demurrer to the evidence should have been sustained. The judgment complained of will accordingly be reversed and a judgment entered in this court for the plaintiff in error.
Reversed.