Danville & Western Railway Co. v. Chattin , 192 Va. 216 ( 1951 )

Buchanan, J.,

delivered the opinion of the court.

Norman Chattin, plaintiff below, was injured when the automobile in which he was riding was struck by a train of. the defendant railway company at a grade crossing. He recovered a verdict and judgment which the railway company here seeks to have reversed on the ground that the negligence of the driver of the automobile was the sole proximate cause of the accident.

The crossing where the accident occurred is about six .miles west of Danville. There the single track of the railroad, running approximately east and west, is crossed obliquely from northwest to southeast, the way plaintiff was going, by State Eoad No. 1132. This road is 13 feet wide and crosses the track at an acute angle of approximately 30° on the right of the car in which the plaintiff was riding.

As the crossing is approached from the northwest, vision of the track to the left, or east, is obstructed by a thick body of pines and undergrowth. A witness for plaintiff said, “It’s very much blind until you get up near the crossing. ’ ’ The vision of the track to the right, or west, is also obstructed in some degree.

About seven-thirty o ’clock of a dry, clear morning, in February, the plaintiff approached this crossing from the northwest, riding on the front seat of a car driven by his brother, James Chattin. On the right of the back seat was Mrs. Elizabeth Bryan and on her left was her daughter, Mrs. Norman Chattin, plaintiff’s wife. Mrs. Bryan was sitting facing Mrs. Chattin and hence looking to her left. As the car cleared the pines and was within 40 to 45 feet of the crossing she, looking east up the track, saw the train “pretty close to us”- and holloed, “There’s the train.” It seemed to her that the driver “put forth every effort to stop and he did stop.” When he stopped, however, the right front of his car was too close to the rail. The train cleared the left front, but due to the angle of the crossing, the overhang of the locomotive caught the right front and in the ensuing wreck the plaintiff and the other three occupants of the car were injured, all except Mrs. Chattin being knocked unconscious.

Nobody in the car had seen or heard the train or knew it was coming until Mrs. Bryan called out. It was a heavily loaded train of seven or eight cars, running downgrade, with the power off, or “drifting,” as the engineer said, at a speed of 25 to 30 miles an hour, about twice as fast as usual, and from 30 to 40 minutes earlier than usual. It ran 300 yards after striking the car.

The jury’s verdict for the plaintiff, it is conceded, establishes as a fact that the statutory signals for the crossing required by section 56-414 of the Code of 1950 were not given; that is, the whistle of the locomotive was not blown and the bell was not rung to give warning of the approach of the train to the crossing as required by that section. That was of course negligence, and if there was causal connection between that negligence and the accident, admittedly the judgment should be affirmed.

The defendant contends, as stated in its brief, that the evidence, viewed in the light most favorable to the plaintiff, as it must be after the verdict, shows that its failure to give the ' statutory signals was not a proximate cause of the accident and the giving of them would not have prevented it. This contention is based largely on the testimony-of the driver, James Chattin, who said, on cross-examination, that he knew of the presence of the train in time to stop; that he stopped where he intended to stop; that he had intended to stop for the track anyway, regardless of whether a train was coming or not, and that the only reason he stopped too close was because he misjudged his distance and failed to appraise correctly the effect of the angle of the crossing.

It is clearly the law that proof of failure to give the prescribed signals and proof of injury, with nothing more, is not enough to entitle a plaintiff to recover. Causal connection between that failure and the injury is an essential element of the plaintiff’s case, and the evidence must, not leave the question of such connection in the realm of speculation or conjecture, but must afford a basis for legitimate inference in order to constitute a jury question. But if the failure to give the signals promimately contributed to the accident in any degree or in any way, the railway company is liable. Chesapeake, etc., R. Co. v. Barlow, 155 Va. 863, 872,156 S. E. 397, 400; Virginian Ry. Co. v. Haley, 156 Va. 350,,378 ff, 157 S. E. 776, 785 ff; Southern Ry. Co. v. Whetsel, 159 Va. 796, 167 S. E. 427; Southern Ry. Co. v. Giles, 169 Va. 218, 222, 192 S. E. 772, 773; Southern Ry. Co. v. Berry, 172 Va. 266, 270-1,1 S. E. (2d) 261, 263.

The accident here was of such nature as the statutory signals were designed to prevent, and if the evidence tends to establish facts and circumstances from which it may be fairly inferred that there is a reasonable probability that the accident would not have happened if the signals had been given, then the question of causal connection is one of fact to be determined by the jury. Virginian Ry. Co. v. Haley, supra, 156 Va. at p. 382, 157 S. E. at pp. 786-7.

The evidence, viewed in the light most favorable to the plaintiff, showed the following facts and circumstances relating to the accident: The occupants of the ear had no warning that the train was coming*. None of them heard it or saw it until the car was clear of the obstructing pines. The driver was not expecting the train. It was coasting downgrade at 25 to 30 miles an hour, twice as fast as usual, and ahead of its usual time. Mrs. Bryan, sitting on the right-hand side of the back seat, and facing to her left, first saw the train and called out a warning. The car was then making about 20 miles an hour and was only 40 to 45 feet from the crossing. The train was then within 100 to 150 feet of the crossing. At the warning the driver first looked to his right down the track, in the opposite direction, and then to his left and saw the train for the first time. It seemed to Mrs. Bryan that he then put forth every effort to stop. He was already slowing down, and after she holloed he slowed down more and “it appeared to me he tried to stop.” In making the stop the wheels did not slide nor the car skid and the brakes were in good order. The occupants of the car were accustomed to driving in the car with James Chattin to Dan River Mills, where they worked, and where they were going* on this occasion. They were familiar with the crossing and it was the driver’s habit to stop for it whether a train was there or not.

The car made a complete stop and just as it stopped the train struck it. Two of plaintiff’s witnesses, standing some distance back, thought the car was still in motion when it was hit. The plaintiff testified that when Mrs. Bryan holloed the driver applied his brakes and made an effort to stop. He had no time to get out and thought the car had stopped in the clear, “what time I had to think, I thought he was in the clear.” He testified that the whistle of the train blows so you can hear it and he would have heard it on this occasion if it had blown.

The defendant argues that the testimony of the occupants of the car, including* the driver, shows a complete lack of emergency, and that the accident resulted from the driver’s failure to stop in a position of safety after he had seen the train in abundant time to stop. The jury could well conclude that there was much less than abundant time. The driver, who was looking to his right, first learned of the approaching train through Mrs. Bryan’s warning, when his car was only 40 to 45 feet from the track, going at 20 miles an hour. On that basis he had about a second and a half to react to the warning and get his car stopped. A State trooper, introduced by the defendant, testified that under such road conditions as prevailed at the crossing, with brakes in proper condition, a car going at 20 miles an hour can be stopped in 43 feet, including reaction time. That gives substantial support to the evidence for the plaintiff that after Mrs. Bryan cried out, the driver put forth every effort to stop. Added to this is the evidence that practically at the instant the car stopped it was struck by the train.

The facts and circumstances refute, rather than require, the conclusion that the driver, within the very short time and space available to him after he saw the train, picked out a place to stop and stopped there, and that the accident was due solely to his mistaken judgment that the place selected was far enough away from the track for the train to pass. It would be more than rare to find a driver reacting in that fashion on suddenly seeing a train bearing down upon him at a crossing. The instinct of self-preservation would ordinarily be too strong to allow it.

The evidence as a whole is contradictory of the statements of the driver on cross-examination, relied on by the defendant, that he knew of the presence of the train in time to stop and stopped where he intended to stop, thinking he was clear of the track. The driver, James Chattin, was a co-defendant with the railway company to the plaintiff’s suit. He was testifying as a witness in his own behalf, and the plaintiff was not bound by his evidence. Moreover, the statements relied on by the defendant were not all he said.

He testified on direct examination that since the accident he had stepped off the distance and found that “you have to get within about 30 feet of the track before you could see on account of the pines, ’ ’ measured from the center of the track, and because of the angle the right wheel would be closer than that; that when his right wheel was on the near rail his left wheel would be 12 feet back. He said that when Mrs. Bryan called out he looked to his right and when he looked to his left there was the train right on the crossing and he applied his brakes and stopped. He said that if he had heard the bell or the whistle he would have stopped farther back. He was asked why he got so close beforé he stopped, and his reply was: “You have to get so close before you can see down there and I was just getting up there to see, and by not hearing the train, it was just on me before I noticed. ’ ’

The defendant says his statement that he would have stopped sooner if he had heard the whistle or the bell is only conjecture. We think it is more than that, and that the jury had a right to conclude from all the facts and circumstances of the case, weighed on the scales of experience and measured by ordinary human conduct, that he would have done so. Such reaction would have been in keeping with this observation made by the present Chief Justice in reference to related facts in Southern Ry. Co. v. Whetzel, supra, 159 Va. at p. 807, 167 S. E. at p. 430:

“It is a matter of common knowledge that the shrill blast of a locomotive whistle or the continued ringing of a large bell is more easily heard than the roar of an approaching train, and travelers possessed of average hearing usually heed such warnings. The statute is based upon this fact. The evidence establishes that the occcupants of the automobile were in a position to hear and heed the statutory signals if they had been given. According to the ordinary experience of mankind, the jury were warranted in the conclusion that the injury would not have occurred had the statutory signals been given. The trial court approved the verdict, and the plaintiff in this court is entitled to every reasonable inference fairly deducible from the evidence.”

Proximate cause, or the relation of negligence to accident, is usually a question of fact for the jury. Only when reasonable men should not disagree on the proper inferences to be drawn from the facts proved is it a question of law. Scott v. Simms, 188 Va. 808, 816, 51 S. E. (2d) 250, 253; Crist v. Fitzgerald, 189 Va. 109, 119, 52 S. E. (2d) 145, 149.

The jury had a right to decide upon the evidence that the failure of the defendant to give the signals required by law proximately contributed to the accident, and accordingly the judgment is

Affirmed.