RGR, LLC v. Settle ( 2014 )

Present: All the Justices
RGR, LLC
OPINION BY
v. Record No. 130633 CHIEF JUSTICE CYNTHIA D. KINSER
JUNE 5, 2014
GEORGIA SETTLE, PERSONAL
REPRESENTATIVE OF THE ESTATE
OF CHARLES E. SETTLE, SR., DECEASED
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Mary Grace O'Brien, Judge
In this wrongful death action arising out of a collision at
a private railroad crossing, we conclude that the decedent,
Charles E. Settle, Sr. (Settle), was contributorily negligent as
a matter of law because he failed to act as a reasonable person
would have acted for his own safety under the particular
circumstances of this case. Therefore, we will reverse the
circuit court's judgment upholding a jury verdict in favor of
the plaintiff.
FACTS AND PROCEEDINGS
In October 2004, Settle was fatally injured when a train
owned and operated by Norfolk Southern Corporation (Norfolk
Southern) struck the dump truck he was operating. At the time
of the collision, Settle was traveling on Kapp Valley Way, a
private road that crosses railroad tracks owned by Norfolk
Southern. 1 Because the railroad crossing was private, it was
1
The scene of the accident is shown in the photograph
appended to this opinion.
controlled with only "crossbuck signs." There were no stop
signs, warning signals, or barriers.
Adjacent to the railroad tracks, the defendant, RGR, LLC,
(RGR) operated a business offloading lumber from train cars and
reloading it onto tractor-trailers. On the date of the
accident, RGR had lumber stacked near the railroad tracks and
seven feet inside Norfolk Southern's 30-foot right-of-way. The
edge of the lumber stacks was 23 feet from the center of the
tracks. The collision occurred after Settle traveled past the
lumber stacks and started to cross the railroad tracks. The
train hit the front side of Settle's truck.
Georgia Settle (Mrs. Settle), as personal representative of
her deceased husband's estate, filed this wrongful death action
seeking compensatory damages and named in her fourth amended
complaint RGR, Norfolk Southern, and two other commercial
business entities as defendants. Mrs. Settle alleged that the
defendants created a hazardous condition by stacking lumber near
the railroad tracks, breached their duty of reasonable care to
Settle by blocking the view of those traveling on Kapp Valley
Way, and failed to take reasonable steps to make the railroad
crossing safe. 2 As a result, Settle, according to the
2
Before trial, the claim against Norfolk Southern was
settled, and the claims against the other two defendants were
dismissed with prejudice.
2
allegations, could not see the approaching train in sufficient
time to stop and avoid the collision.
At trial, the parties stipulated to certain facts. A third
party owned Kapp Valley Way, and Norfolk Southern owned both the
railroad tracks on which the accident occurred and a right-of-
way that extended 30 feet in each direction from the center of
the tracks. Norfolk Southern's trains came from both directions
on the tracks that crossed Kapp Valley Way, and its trains did
not come at the same time every day. The particular train that
struck Settle's truck was traveling at approximately 45 miles
per hour and was composed of three engines and more than 100
cars. Settle's dump truck was 30 feet in length and measured
eight feet from its front end to the back of the interior of the
cab. At the time of the accident, Settle's truck was loaded
with 13.21 tons of gravel that he was delivering to a county
sewer system pipeline construction site. Settle held a
commercial driver's license (CDL) and was employed as a dump
truck driver.
Settle was driving southbound on Kapp Valley Way (from left
to right in the photograph) toward the railroad crossing. The
train was traveling east (from bottom to top in the photograph),
The fourth amended complaint also included a claim for
negligence per se and sought punitive damages. The circuit
court sustained RGR's demurrer and dismissed the negligence per
se claim and request for punitive damages without leave to
amend.
3
approaching Settle from his right. RGR's lumber stacks were
situated on the north side of the tracks at the corner where
Kapp Valley Way crosses the railroad tracks. According to a
representative from Norfolk Southern, the sightline at the point
where Kapp Valley Way crosses the railroad tracks extended 800
feet to the west, the direction from which the train came that
struck Settle's truck, and 600 feet to the east.
Receipts from Settle's deliveries on the day of the
accident reflected that he was making his seventh trip to
deliver gravel to the construction site when the collision
occurred. One of Settle's co-employees, who had also driven
over the crossing on Kapp Valley Way numerous times, testified,
via deposition, that his usual practice was not to stop at the
crossing but simply to slow down, check for a train, and proceed
over the tracks if a train was not present. The employee stated
that it was possible to stop before reaching the tracks if a
train was approaching but that "you couldn't see like you
should." According to the employee, if the lumber stacks were
"out of the way, it would have been a whole lot better." But,
the employee acknowledged that he had indeed stopped at the
crossing in sufficient time to avoid being struck by a train
coming from the west. He also stated that no one ever
complained to RGR or Settle's employer about the lumber stacks'
4
obstructing the view of the railroad tracks from Kapp Valley
Way.
Timothy Weston, the owner of a commercial truck repair
company, testified for Mrs. Settle as an expert on the operation
of the dump truck Settle was driving when he was fatally
injured. According to Weston, a truck like Settle's, if fully
loaded, will accelerate in first gear from a stationary position
at the speed of one-to-two miles per hour. In second gear, the
truck, according to Weston, will increase its speed to two-to-
three miles per hour and will travel at five miles per hour in
third gear. In this particular type of truck, shifting between
gears requires the driver to "push the clutch in, put the truck
in neutral, [and] push the clutch back in," timing it "with the
engine speed [and] decreasing the rpm of the engine . . . when
you go into gear." According to Weston, if the driver misses a
gear, the truck is in neutral, and if fully loaded, will stop.
Weston approximated that coming to a complete stop with a full
load while traveling five miles per hour would require about ten
feet. 3 Weston also testified that due to various noises inside
the cab of the truck while driving, it is difficult to hear
noises outside the cab.
3
The parties agreed that five miles per hour equals 7.33
feet per second, and the circuit court took judicial notice that
the average driver's "perception-reaction time" is 1.5 seconds.
5
Jose Mendosa was driving a box truck on the opposite side
of the tracks, traveling northbound on Kapp Valley Way (from
right to left in the photograph). Mendosa and his passenger,
Luis Bonilla, testified that they saw the train approaching from
the railroad crossing at Route 15, to their left, and stopped
their truck at the crossing. 4 Mendosa and Bonilla both stated
that they heard the train's horn once, before the train reached
the Route 15 crossing, but denied that the train blew its horn
again from the time it crossed Route 15 until it hit Settle's
truck. Mendosa saw Settle's truck approaching the crossing and
stated that Settle was traveling "very slowly," about five miles
per hour. Mendosa and Bonilla both attempted to get Settle's
attention by waving their arms at him as he neared the crossing,
but neither could see Settle's face through his truck's
windshield. Mendosa also testified that he had crossed the
track on Kapp Valley Way several times that day and that "it was
difficult to see because of the lumber piles."
Danny Humphreys owned a business on Kapp Valley Way and was
driving a pick-up truck that stopped behind Mendosa and Bonilla
at the crossing. Humphreys stated that he did not hear the
train but that his windows were rolled up, he was on the
4
The record does not reflect the distance between the
railroad crossing at Route 15 and the Kapp Valley Way crossing.
Testimony and several photographic exhibits, however,
demonstrate that there is a curve in the track between Route 15
and the Kapp Valley Way crossing.
6
telephone, and his air-conditioning was running. Humphreys also
had traveled on Kapp Valley Way many times the day of the
accident and testified that, when approaching the crossing as
Settle did, he could not see the tracks to the right because of
the lumber stacks. According to Humphreys, one could only see
whether a train was approaching "[w]hen you get to the edge of
the lumber pile" and that "you would have to kind of look around
the corner." In addition, because the Kapp Valley Way crossing
was only one lane wide, a driver had to stop if other vehicles
were present and take turns crossing the railroad tracks. In
Humphreys' experience, most of the trains that crossed Kapp
Valley Way came from the east heading west (from top to bottom
in the photograph), i.e., in the opposite direction as the train
that struck Settle's truck.
Michael White was employed by RGR and was working outside
in the lumber yard when the accident occurred. Although White
did not witness the accident, he testified that he heard the
train's horn before it crossed Route 15 and then heard a screech
and a bang from the accident perhaps 30 seconds later. Michael
Lawson, White's supervisor, was also outside and likewise
estimated that about 30 seconds elapsed between the time the
train blew its horn and the accident occurred.
Roger Janney, the conductor of the Norfolk Southern train
that struck Settle's truck, testified that the engineer blew the
7
train's horn and started slowing the train as it approached the
Route 15 crossing. Janney said that as the train "came around
the curve" after crossing Route 15 and approached the Kapp
Valley Way crossing, he saw Settle's truck come into sight from
behind a building. Janney next saw Settle as the front of his
truck appeared from behind the lumber stacks. According to
Janney, Settle was looking straight ahead. Janney could not
estimate Settle's speed but stated that the truck was moving
slowly. Thomas Street, the train's engineer, confirmed that he
blew the train's horn before reaching Route 15, and both he and
Janney testified that Street blew the horn again after crossing
Route 15 in advance of the Kapp Valley Way crossing. Street
stated that he saw Settle twice before his truck reached the
crossing, that Settle was looking straight ahead when he entered
the crossing, and that Settle was driving about two-to-four
miles per hour.
Richard Young, testifying for RGR as an expert on drivers
with a CDL, stated that such a driver would be required to stop
at the crossing adjacent to the lumber stacks because the driver
would not be able to see if a train was coming until he or she
was within 15 feet of the tracks. Young conceded, however, that
a driver would not be required to stop if, using ordinary care,
the driver believed there was no train coming. Young also
8
agreed that "commercial drivers should not stop closer than 15
feet from the rail crossing."
At the close of Mrs. Settle's evidence and again at the
close of all the evidence, RGR moved to strike. RGR argued,
inter alia, that the evidence established that Settle was
contributorily negligent as a matter of law because he never
looked to see if a train was approaching and his failure to do
so, not RGR's lumber stacks, was a proximate cause of the
accident. The circuit court denied the motions to strike. The
jury returned a verdict for Mrs. Settle in the amount of $2.5
million, along with pre-judgment interest. RGR filed a motion
to set aside the verdict, again raising the issue of
contributory negligence and requesting, in the alternative, a
new trial or a remittitur of the verdict. After a hearing, the
circuit court denied RGR's motions and entered a final order in
accord with the jury's verdict. This appeal followed. The
dispositive issue is whether Settle was contributorily negligent
as a matter of law.
ANALYSIS
"Contributory negligence is an affirmative defense that
must be proved according to an objective standard whether the
plaintiff failed to act as a reasonable person would have acted
for his own safety under the circumstances." Jenkins v. Pyles,
269 Va. 383, 388, 611 S.E.2d 404, 407 (2005); accord Sawyer v.
9
Comerci, 264 Va. 68, 74, 563 S.E.2d 748, 752 (2002); Ponirakis
v. Choi, 262 Va. 119, 124, 546 S.E.2d 707, 710 (2001). The
defendant has the burden to prove contributory negligence by
"the greater weight of the evidence." Sawyer, 264 Va. at 75,
563 S.E.2d at 752. "[J]ust as a plaintiff is required to
establish a prima facie case of negligence, a defendant who
relies upon the defense of contributory negligence must
establish a prima facie case of the plaintiff's contributory
negligence." Id. at 75, 563 S.E.2d at 753. To do so, a
defendant must show that the plaintiff was negligent and that
such negligence was a proximate cause of the accident. Rascher
v. Friend, 279 Va. 370, 375, 689 S.E.2d 661, 664-65 (2010).
Ordinarily, these are questions of fact to be decided by the
fact finder. Jenkins, 269 Va. at 388, 611 S.E.2d at 407. The
issue becomes one of law "only when reasonable minds could not
differ about what conclusion could be drawn from the evidence."
Id. at 389, 611 S.E.2d at 407 (collecting cases).
Armed with a jury verdict approved by the circuit court,
Mrs. Settle now occupies "the most favored position known to the
law." Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 54,
710 S.E.2d 736, 739 (2011) (internal quotation marks omitted);
accord Bitar v. Rahman, 272 Va. 130, 137, 630 S.E.2d 319, 323
(2006); Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 57, 419
S.E.2d 627, 630 (1992). Thus, she is entitled to have the
10
evidence and all inferences reasonably drawn from it viewed in
the light most favorable to her. Norfolk S. Ry. Co. v. Rogers,
270 Va. 468, 478, 621 S.E.2d 59, 65 (2005). We will not set
aside the circuit court's judgment unless it is "plainly wrong
or without evidence to support it." Code § 8.01-680; Rogers,
270 Va. at 478, 621 S.E.2d at 65. Upon applying these
principles, if it appears that a judgment is plainly wrong or
without evidence to support it, we must set it aside. Atrium
Unit Owners Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548
(2003).
RGR asserts that the circuit court erred by denying its
motions to strike and to set aside the verdict because Settle
was contributorily negligent as a matter of law. RGR contends
that Settle was familiar with the Kapp Valley Way crossing, that
although other individuals heard the train's horn when it
approached the Route 15 crossing, he did not look to his right
or left and did not stop before attempting to cross the railroad
tracks despite the approaching train. According to RGR, Settle
failed to exercise reasonable care before crossing the tracks
and his failure to do so was a proximate cause of the accident.
As Settle approached the Kapp Valley Way railroad crossing,
he "had the duty to look and listen with reasonable care; he did
not have the absolute duty to discover the presence of the
train, unless by so looking and listening he was bound to have
11
discovered it." Norfolk & W. Ry. Co. v. Greenfield, 219 Va.
122, 132, 244 S.E.2d 781, 786-87 (1978). 5 "Repeatedly, we have
said that a railroad track is a proclamation of danger and the
operator of a vehicle approaching a grade crossing 'is required
to look and listen at a time and place when both looking and
listening will be effective,' intelligently using both eyes and
ears." Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 171, 427
S.E.2d 724, 730 (1993) (quoting Norfolk & W. Ry. Co. v. Epling,
189 Va. 551, 557, 53 S.E.2d 817, 820 (1949)). Further, "[i]f a
traveler drives blindly upon a crossing whether his view is
obstructed or unobstructed, takes no precautions for his safety
and is injured, his negligence will preclude any recovery on his
part." Southern Ry. Co. v. Campbell, 172 Va. 311, 318, 1 S.E.2d
255, 258 (1939). "'He can not wait until his view is obstructed
and say it would have been useless for him to have looked
then.'" Id. (quoting Virginian Ry. Co. v. Rodgers, 170 Va. 581,
587, 197 S.E. 476, 478 (1938)).
We applied these principles in Wright, the facts of which
are strikingly similar to those in this case. There, the
5
The jury was instructed that "[a] driver crossing train
tracks has the duty to look and listen with reasonable care; he
[does] not have the absolute duty to discover the presence of
the train, unless by so looking and listening he was bound to
have discovered it," and that a driver has the "duty to use
ordinary care to look and listen effectively for an approaching
train before crossing the tracks," even if the railroad failed
to sound a horn, and "to stay off the tracks if he becomes aware
of an approaching train."
12
plaintiff, an experienced dump truck driver, was "thoroughly
familiar" with a public railroad crossing, having "traversed it
in his truck on nine occasions during a two-day period before" a
collision occurred between his truck and a train. Wright, 245
Va. at 171, 427 S.E.2d at 730. The plaintiff was aware that he
needed to rely on his senses of sight and sound to detect an
approaching train because there were no automatic warning
devices at the crossing. Id. He further knew of "the
limitations to sight and hearing" due to the configuration of
his truck's cab and the angle of the street relative to the
railroad tracks. Id. Nevertheless, the plaintiff "drove his
truck from a stopped position of safety onto the crossing
directly in front of the train when its engine was less than ten
feet away." Id.
The plaintiff's experts testified that it was "impossible"
for the plaintiff to have seen or heard the train and that the
crossing was "not reasonably safe" and "ultrahazardous." Id. at
164-65, 427 S.E.2d at 726 (internal quotation marks omitted).
Nevertheless, the trial court concluded that the plaintiff was
contributorily negligent as a matter of law. We agreed, stating
that the plaintiff, "knowing the dangers to be encountered at
the crossing," could have taken numerous steps to avoid the
collision, including "open[ing] his window after his truck had
been loaded and before [leaving] the quarry [or] making a wider
13
right turn, thus bringing his truck to an attitude with relation
to the crossing that he could see clearly north along the
track." Id. at 171-72, 427 S.E.2d at 730. But, the plaintiff
did none of those things and thereby caused the accident. Id.
at 172, 427 S.E.2d at 730; see also Greenfield, 219 Va. at 133,
244 S.E.2d at 787.
We reach the same conclusion in this case. The
uncontradicted evidence established that Settle was familiar
with the crossing, having proceeded through it numerous times on
the day of the accident. So, he had notice of the limited
sightline posed by the configuration of the lumber stacks and
the angle of the tracks to both east and west. In light of this
known danger, "reasonable care" required Settle to approach the
crossing in such a way that would allow him to stop before
reaching the tracks if, by looking and listening, he was bound
to detect an approaching train. See Campbell, 172 Va. at 317, 1
S.E.2d at 257 ("A traveler . . . must always exercise care
proportioned to the known danger, and this care must be such as
one who knows the danger and of the prior right of passage [of
the moving train] would be expected to exercise.").
According to the individuals who witnessed the accident,
Settle was traveling slowly as he approached the crossing, at a
speed of approximately five miles per hour or less. Regardless
of his speed, Settle did not approach the crossing in a manner
14
that would have enabled him to stop when looking and listening
with reasonable care would have revealed the presence of the
train. Either Settle failed to look and listen with reasonable
care; or if he did so, he failed to see the plainly visible
approaching train; or if he did observe the train, he failed to
stop before traveling onto the tracks. Under any of these
scenarios, Settle failed to exercise reasonable care for his own
safety despite the known dangerous sightline at the Kapp Valley
Way crossing. See Norfolk & W. Ry. Co. v. Benton, 160 Va. 633,
641, 169 S.E. 560, 563 (1933) (holding that the plaintiff
"either did not look toward the approaching train which was in
his plain view practically all the time, or if he looked no heed
was given to it" and that "[s]uch conduct in either event [was]
contributory negligence as a matter of law"); Norfolk & W. Ry.
Co. v. Hardy, 152 Va. 783, 796, 148 S.E. 839, 842 (1929) (same);
Rodgers, 170 Va. at 589, 197 S.E. at 479 (same). Settle's
failure to do so was negligence as a matter of law and that
negligence was a proximate cause of the accident and his death.
See Ford Motor Co. v. Boomer, 285 Va. 141, 150, 736 S.E.2d 724,
728 (2013) ("The proximate cause of an event is that act or
omission which, in natural and continuous sequence, unbroken by
an efficient intervening cause, produces that event, and without
which that event would not have occurred.") (internal quotation
marks and citation omitted).
15
In contrast to the facts in Wright and in this case, those
in Campbell were such that a jury, not the trial court, should
determine whether the plaintiff there was contributorily
negligent. In Campbell, obstructions prevented the plaintiff
from having a clear view of the railroad tracks for trains
approaching from the right until the front of his truck was near
the rails. 172 Va. at 315, 1 S.E.2d at 256. The automatic
warning gong with a red light in its center was flashing when
the train moved forward over the crossing and stopped when the
train advanced beyond the crossing. Id. After lowering his
window, looking, and listening, the plaintiff believed that the
train had passed on and thus drove slowly onto the crossing,
when his truck was struck by the backward movement of the train
coming from the plaintiff's right. Id. We concluded that the
plaintiff's "conduct on approaching the crossing under the
surrounding conditions, measured by what a prudent man in the
exercise of ordinary care would have done under like
circumstances, was at least such as would cause fair-minded men
to differ." Id. at 319, 1 S.E.2d at 258. We cannot say the
same with regard to Settle's conduct.
Mrs. Settle, however, argues that the question of
contributory negligence was for the jury because pertinent facts
were disputed and because Settle faced a predicament at the
crossing, helpless to oncoming trains whether he stopped at the
16
crossing or approached it slowly. If Settle had stopped his
truck just past the lumber stacks so he could see a train coming
from the west, Mrs. Settle contends, he would have been unable
to get his dump truck moving fast enough to safely cross the
tracks before a train — not viewable at the time he stopped —
could have approached from the east, where a curve in the track
limited Settle's visibility to 600 feet. Because Settle's
truck, when fully loaded, could accelerate at the rate of only
one-to-two miles per hour in first gear and three-to-four miles
per hour in second gear and because shifting gears in the truck
took additional time, Mrs. Settle argues that stopping to look
for oncoming trains would have put Settle at great risk to be
hit by a train approaching from the east.
This argument overlooks the facts of the case. First, as
the jury was instructed, Settle had no duty to stop, only the
"duty to use ordinary care to look and listen effectively for an
approaching train before crossing the tracks." Second, we are
not faced with a situation where a train was approaching from
the east outside Settle's visibility range. Instead, there is
no question that the train approached from the west and was
visible when Settle passed the lumber stacks and before he
reached the crossing. By looking and listening with reasonable
care as he approached the crossing, Settle could have seen the
immediate presence of the train and reacted in time to stop and
17
avoid the collision. 6 See Washington & Old Dominion Ry. Co. v.
Zell, 118 Va. 755, 759, 88 S.E. 309, 310 (1915) (noting that the
contention that the plaintiff had to be close to the railroad
tracks before he could see any distance to the west
"emphasize[d] the importance of caution on his part"). Because
he failed to do so, Settle was, tragically, like the plaintiff
in Wright, "the architect of his own misfortune." 245 Va. at
172, 427 S.E.2d at 730.
CONCLUSION
For these reasons, we will reverse the circuit court's
judgment and enter final judgment for RGR. 7
Reversed and final judgment.
6
Indeed, according to Mrs. Settle's allegations, the
crossbuck sign at this railroad crossing "warn[s] a driver to be
prepared to slow down, look and listen for a train with
reasonable care, and be prepared to stop if he can reasonably
determine that a train is in dangerous proximity to the
crossing."
7
In light of our decision, it is not necessary to address
RGR's other assignments of error.
18
JUSTICE POWELL, with whom JUSTICE MIMS joins, dissenting.
In my opinion, the majority’s holding is not supported by
our jurisprudence with regard to contributory negligence.
Therefore, I must respectfully dissent.
Contributory negligence is an affirmative
defense that must be proved according to an
objective standard whether the plaintiff
failed to act as a reasonable person would
have acted for his own safety under the
circumstances. The essential concept of
contributory negligence is carelessness.
Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d 404, 407 (2005)
(citations omitted).
According to the majority, Settle was contributorily
negligent as a matter of law because “[r]egardless of his speed,
19
Settle did not approach the crossing in a manner that would have
1
enabled him to stop when looking and listening with reasonable
care would have revealed the presence of the train.” In so
holding, the majority seemingly disregards case law establishing
that such a determination is a question of fact to be determined
by a jury.
In Southern Railway Co. v. Bryant, 95 Va. 212, 219, 28 S.E.
183, 185 (1897), this Court specifically held that:
Where the view of the track is obstructed,
and the railroad company has failed to give
notice of the approach of its train to a
crossing upon the highway, and a person in
attempting to go across the track, not being
able to see the train on account of
obstructions, and being obliged to act upon
his judgment at the time of crossing, is
injured, the propriety of his going upon the
1
In my opinion, the use of the word “when” changes the
focus of this factual inquiry. The majority cites Southern
Railway Co. v. Campbell, 172 Va. 311, 317, 1 S.E.2d 255, 257
(1939), for the proposition that “reasonable care” required
Settle to approach the crossing in such a way that would allow
him to stop before reaching the tracks “if,” by looking and
listening, he was bound to detect an approaching train. Indeed,
the jury was instructed, inter alia, that a driver has the “duty
to use ordinary care to look and listen effectively for an
approaching train before crossing the tracks, “even if the
railroad failed to sound a horn,” and “to stay off the tracks
‘if’ he becomes aware of an approaching train.” The word “if”
is conditional requiring the jury to determine whether Settle
became aware of the train. The use of the word “when,” however,
makes it inevitable that he would become aware. The use of the
word “if” in the jury instructions clearly left it to the fact
finder to determine whether Settle was contributorily negligent.
20
track under such circumstances is not a
question of law to be decided by the court,
but a matter of fact to be determined by the
jury.
(Emphasis added.)
Similarly, in Southern Railway Co. v. Campbell, 172 Va.
311, 322, 1 S.E.2d 255, 259 (1939), a case factually similar to
the present case, this Court specifically held that the question
of contributory negligence is a question for the jury.
If his view is obstructed and he exercises a
reasonable degree of caution, drives slowly,
looks and listens for trains but sees none,
proceeds in a cautious manner over the
tracks and is injured, the question of
whether he was negligent under all of the
circumstances must be for the jury.
Id. (emphasis added).
The evidence in this case demonstrates that Settle
exercised a reasonable degree of caution as he approached the
railroad crossing, as he slowed down to somewhere between
walking speed and five miles per hour as he approached. Indeed,
at trial, RGR actually put on evidence that other drivers
approached the crossing in the same manner as Settle, (i.e.,
slowing down as they approached the crossing but not coming to a
complete stop). Further, it is apparent that he reasonably
believed that no train was coming as he approached the tracks.
Several witnesses testified that the train did not blow its
whistle as it approached the crossing, and thus, viewed in the
21
light most favorable to Mrs. Settle, this evidence indicates
that Settle had no auditory warning that a train was coming.
Additionally, the lumber stacks blocked his view of any
approaching trains until his truck was approximately 12.5 feet 2
from the tracks. 3 Thus, because there is evidence in the record
from which a jury could have found that Settle exercised a
2
The right-of-way spans 30 feet from the midpoint of the
tracks and the tracks are five feet wide, meaning that the
right-of-way only extends 27.5 feet on either side of the
tracks. The parties stipulated at trial that the lumber pile
was seven feet inside the right-of-way (i.e., 20.5 feet from the
edge of the tracks closest to Settle’s truck) and that it was
eight feet from the front bumper of Settle’s truck to the rear
of the cab. Thus, at the earliest point where Settle’s view was
no longer obstructed by the lumber pile, the front bumper of his
truck was approximately 12.5 feet from the tracks.
3
While it is true that Settle could have stopped prior to
this point, doing so would have proven futile. It is
indisputable that, prior to the point where the front of
Settle’s truck was 12.5 feet from the tracks, his view was
completely obstructed by the lumber stacks.
Furthermore, there is evidence in the record indicating that
stopping at this point would have potentially exposed Settle to
danger from a train coming from the other direction. Only 600
feet of track was visible to the east. A westbound train
traveling at the same speed as the eastbound train,
approximately 45 miles per hour, in this case would cross that
distance in approximately 9.1 seconds. A driver of a truck
similar to Settle’s, stopped at a point beyond the lumber stacks
close enough to visualize the track to the west, would have to
cross more than 47.5 feet to clear the track: at least the 12.5
feet remaining between the front bumper and the track, the 5-
foot width of the track itself, and the 30-foot length of the
truck. To cover those 47.5 feet in the time it would take a
westbound train traveling at 45 miles per hour to cover the 600
feet of visible track would require a continuous speed exceeding
3.5 miles per hour. Coming from a dead-stop, such a feat would
be impossible given the truck that Settle was driving. Thus,
the lumber stacks created a situation that made the crossing
both dangerous to stop at and dangerous to go through.
22
reasonable degree of caution, drove slowly, looked and listened
as best he could under the circumstances, and proceeded in a
cautious manner, according to this Court in Campbell, the
question of whether Settle was contributorily negligent is a
matter to be decided by a jury.
According to the majority, Settle either “failed to look
and listen with reasonable care; or if he did so, he failed to
see the plainly visible approaching train; or if he did observe
the train, he failed to stop before traveling onto the tracks.”
As I previously explained, there was evidence from which a fact
finder could have found that Settle looked and listened as best
he could under the circumstances. Further, there is evidence
that the train was not plainly visible due to the location of
the lumber stack. Thus, the only remaining basis for finding
Settle contributorily negligent as a matter of law would be that
Settle failed to stop before traveling onto the tracks.
Notably, this rationale has never been relied upon by this Court
as the basis for finding contributory negligence as a matter of
law. Rather, the general rule has been announced that whether
one crossing a railroad grade is required to stop before going
thereon is a question for the jury under proper instructions.
Campbell, 172 Va. at 317, 1 S.E.2d at 257. Indeed, in deciding
contributory negligence as a matter of law, this Court has
always looked to whether the driver took no heed of the
23
approaching train. See Norfolk & W. Ry. Co. v. Benton, 160 Va.
633, 641, 169 S.E. 560, 563 (1933) (holding that a driver was
contributorily negligent if he “either did not look toward the
approaching train which was in his plain view practically all
the time, or if he looked [and] no heed was given to it”)
(emphasis added). Under this rationale, every driver involved
in a collision at a crossing with an obstructed view must
necessarily be contributorily negligent as a matter of law
because the mere fact that the collision occurred demonstrates
that the driver ultimately “failed to stop before traveling onto
the tracks.”
Furthermore, such an approach fails to take into account
that Settle’s failure to stop may have been the result of the
RGR’s negligence. This Court has specifically recognized that
it is for the jury to consider whether the negligence of the
tortfeasor affected the actions of the driver. See Kimball v.
Friend, 95 Va. 125, 138-39, 27 S.E. 901, 903 (1897). Today,
however, the majority has failed to give any consideration to
the effect that RGR’s negligence may have had upon Settle’s
actions.
This Court has long recognized that the objective standard
applicable to railroad crossings is that a driver approaching a
crossing has “the duty to look and listen with reasonable care;
he [does] not have the absolute duty to discover the presence of
24
the train, unless by so looking and listening he was bound to
have discovered it.” Norfolk & W. Ry. Co. v. Greenfield, 219
Va. 122, 132, 244 S.E.2d 781, 786-87 (1978). Further, this
Court has gone so far as to recognize the existence of the
presumption that an individual approaching a crossing has
fulfilled the duty to look and listen. Kimball, 95 Va. at 139,
27 S.E. at 903 (“Where a traveller is killed at a railroad
crossing, and the negligence of the railroad company is
established, in the absence of evidence to the contrary, the
presumption is, though, perhaps slight, that the traveller did
his duty in approaching the crossing.”). By declining to impose
an absolute duty and creating such a presumption, this Court has
implicitly recognized that there are situations where an
individual exercising reasonable care will not become aware of
the presence of a train until it is too late to stop.
Although the majority states that the facts in Wright are
“strikingly similar to those in the present case,” it ignores
the most significant fact of that case, a fact which
distinguishes Wright from the present case: in Wright, the
driver was unaware of the approaching train as a direct result
of his own unreasonable actions. Specifically, this Court
recognized that the driver’s view was obstructed because he
failed to take a wide enough right turn to bring “his truck to
an attitude with relation to the crossing that he could see
25
clearly.” Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 171-72,
427 S.E.2d 724, 730 (1993). In the present case, however,
Settle’s obstructed view was caused by RGR’s placement of the
lumber stacks. Short of physically moving the lumber stacks
himself, there was nothing that Settle could have done to avoid
having his view obstructed by the lumber stacks without
imperiling himself to a train approaching from the other
direction. Thus, Wright is wholly inapposite to the present
case.
Rather, in my opinion, the facts in this case are more akin
to Campbell. In both cases, the drivers’ view of the tracks was
obscured in one direction, such that the drivers were
“prevented . . . from obtaining a clear view of the track for
trains approaching from the right until the front of the truck
was quite near the rails.” Campbell, 172 Va. at 315, 1 S.E.2d
at 256. In both cases, the drivers approached the crossing
“cautiously and slowly.” Id. In Campbell, there was
affirmative evidence that the driver looked and listened for an
oncoming train. Id. As I previously noted, there is evidence
in the present case from which a jury could find that, to the
extent that he was able to, Settle did the same. The only
significant difference in the cases is the presence of a silent
warning gong in Campbell, while there was no warning gong at all
in the present case. However, this amounts to the functional
26
equivalent of the train’s failure to sound its horn as it
approached the crossing in the present case. In both
situations, a driver would expect to hear the whistle or the
warning gong if a train was approaching. Thus, the failure to
sound the whistle is the functional equivalent of a non-
functioning warning gong and, therefore, it is merely a factor
for the jury to consider in determining whether the driver
exercised reasonable precaution under the circumstances. Id. at
322-23, 1 S.E.2d at 259-60.
As I do not believe that Settle was contributorily
negligent as a matter of law, nor do I believe the trial court
erred in any other respect, I would affirm the decision of the
trial court in its entirety.
27