Director General of Railroads v. Blue , 134 Va. 366 ( 1921 )

Reheard November 16, 1922.

Kelly, P.,

delivered the opinion of the court.

[6] This case is before us upon a rehearing. The former opinion, reported in 109 S. E. 482, states the facts fully and correctly, with the exception of the inadvertent reference therein to the length of the engine as being 184 feet. The fact is that it was only eighty-four feet long. This error, however, was immaterial, and does not affect the result. While it appeared from the statement of facts in the opinion that after the plaintiff had entered what is referred to as the zone of danger, the engine was still about its own length away from him, a correct interpretation of the opinion shows that the decision was not rested upon the theory that there was time enough for the employees of the defendant company to avert the accident after the plaintiff had actually crossed the danger line. It may be conceded, and it is probably true, that if the case depended upon that theory there could be no recovery because the intervening time and distance would not have been sufficient to warrant the application of the doctrine of the last clear chance.

We held before, and hold now, that the lower court was right in overruling the demurrer to the evidence because if the case had gone to the jury they would have been warranted in finding (1) that before the plaintiff had reached a point which brought him within the overhang of the engine, it ought to have been apparent to the look-out man that the plaintiff was unconscious of its approach and that a collision, if not inevitable, was highly probable, unless some more effective signal was given, or unless the speed of the engine was reduced; (2) that when this situation developed there was still ample time and opportunity to give such signals, to reduce the speed, and, if necessary, to stop the engine; and (3) that no effort was made to do either of these things.

[6] The issues of law and fact arising between the former opinion and the contention of the defendant on this rehearing are narrow and sharply drawn. The real gravamen of the defendant’s argument is (1) that the plaintiff was not actually in a position of danger until he came within the overhang of the engine, and (2) that until he reached that point the lookout man not only did not know that he would not stop in time to save himself, but was justified in presuming that he would remain in a place of safety. As to the first branch of this contention it seems sufficient to say that a man who is obviously walking heedlessly from safety into immediate danger is in imminent peril. As to the second branch, there was, of course, a sense in which the lookout man did not know that the plaintiff would fail to stop, because it was entirely possible for him to stop at any moment. But exactly the same thing would have been true, and exactly the same principle would have applied, if he had been walking or standing in the middle of the track with his back to the engine. In that situation the operatives would have had the right to presume that he would look out for or hear the train and provide for his own safety, unless and until they got so close as to make it apparent that he probably would not change his position. In this latter event — that is, when it became apparent that he probably would not get off of the track — it would still be impossible for the men in charge of the train to know absolutely that he would not yet take the one or two steps necessary to save himself, but they would no longer have the right to act upon the presumption that he would get out of the way. This is exactly the principle which was applied in the case of Gunter v. Southern R. Co., 126 Va. p. 565, 101 S. E. 885, cited in the former opinion, and likewise applied in N. & W. R. Co. v. Arrington, 131 Va. 564, 109 S. E. 303.

[7] Undoubtedly, the general rule is that when those in charge of a train or engine see a traveler approaching a crossing in apparent possession of his faculties, and situated so he can see the engine, they may presume that he will stop before he places himself in a position to be injured. But there is no particular magic in this rule and it possesses no novelty. It is merely an instance or an application of the more comprehensive presumption that every person will exercise ordinary care for his own safety. The presumption ceases when the obvious facts or circumstances are to the contrary. The employees of a railway company running a train have no right to presume that a traveler will stop before he enters the zone of danger when his obvious position and conduct are such as to indicate that he will not stop. The decision in this case does not, as the learned counsel for defendant seem to think, mark either a revolution ór an advance in the law upon the doctrine of the last clear chance as applied to railroad crossings. The decision merely follows the law in this respect as it has long been recognized in this State and elsewhere generally.

In Southern R. Co. v. Daves, 108 Va. 378, 61 S. E. 748, relied upon by the defendant, this court said: “In other words the railroad company cannot be held liable for the failure of its engineer to anticipate that a person, whether infant or adult, approaching a crossing, is going to step upon the track immediately in front of a moving engine, unless there is something to suggest to the engineer that such person does not intend to remain in a place of safety until the train has passed.” (Italics added.)

In Morton v. Southern R. Co., 112 Va. 398, 71 S. E. 661, also relied upon by the defendant, liability was denied “because there was no evidence tending to show that there was something in the appearance of the deceased to suggest to the engineer that he did not intend to remain in a place of safety until the train passed, or would be unable to clear the track until after he had stepped over its west rail, before the engine reached the crossing.”

In Southern R. Co. v. Baptist, 114 Va. 723, 77 S. E. 477, the court said: “It is well settled that where railroad employees discover persons near a railroad or approaching a crossing, such employees have the right to presume that the traveler will stop and not go upon the track immediately ahead of an approaching train, unless there is something to suggest that the traveler does not intend to remain in a place of safety until after the train has passed.”

The cases of Backus v. N. & A. T. Co., 112 Va. 292, 71 S. E. 528; Springs v. Va., etc., Co., 117 Va. 826, 86 S. E. 65, and Canody v. N. & W. R. Co., 129 Va. 56, 105 S. E. 585, are also cited in this connection by counsel for the defendant. The first two of these cases expressly recognize the exception to the general rule which controls the present case, and while the third contains no express reference thereto, there is nothing in the case to indicate that the conduct of the traveler as he approached the crossing was such as to charge the employees of the defendant with knowledge that he would probably not stop before he reached the crossing.

In 8 Thompson on Negligence (White’s Supplement 1914), section 1601, it is said: “As a general rule train operatives have a right to assume that a person is in possession of his faculties and will retain a place of safety and will not recklessly expose himself to danger. The operatives are not bound to assume that he will heedlessly leave a place of safety and put himself on the track and in danger. But the operatives may not rely on this presumption if the circumstances are such as to indicate that the traveler is not aware of the approaching train.”

In 33 Cyc. 981, the statement in the text is as follows: “Except where there is a statutory provision to the contrary, an engineer or other employee in charge of a train ordinarily has the right to presume that a person on approaching a crossing is in possession of his natural faculties, and will take the precautions which the law requires him to take to insure his own safety, and that he is aware of the situation and will move to or remain in a place of safety; and the engineer or other employee seeing such person is generally under no obligation to stop or cheek the train, * * * . Where, however, such railroad employee knows or has reason to apprehend that a person on or approaching the crossing is not in possession of ordinary ability to care for himself, * * * , or that by reason of other circumstances he apparently will not get or stay out of danger, it is his duty to use all reasonable efforts to slacken the speed of the train, and if possible to stop it in time to avert the accident; and if he fails to do so, the railroad company is liable for the resulting damages.”

[8] Citation of authorities to the foregoing effect might be multiplied indefinitely. The reason of the thing, as well as the uniform course of authority, leads irresistibly to the conclusion that the doctrine of the last clear chance applies just as well when it is apparent that a person is on the verge of stepping heedlessly into danger as when it appears that he is likely not to change his position so as to get out of danger. The doctrine is founded in humane considerations, and there is no reason for making a distinction between cases of the former and latter type.

[9] If there be inquiry as to just when the presumption that a traveler on or approaching a railroad track will use due care, ceases to operate as an excuse for a failure on the part of trainmen to take active steps for his protection, the answer is that no inflexible rule can be laid down. Every ease must be decided upon its own facts. To the ordinary and usual situation of a traveler on or approaching the track, there must be super-added circumstances sufficient to charge an ordinarily prudent man with a sense of danger. As said in the Gunter Case, supra, “it matters not how an engineman is admonished of the peril,” and “if the evidence leaves it doubtful * * * the question is one for the jury.”

The conclusion of law upon the demurrer to the evidence could not be different from that which we reached on the former hearing without violating settled principles, and we adhere to that conclusion.

Affirmed.

Burks, J., dissenting.