Chesapeake & Ohio Railway Co. v. Marshall ( 1949 )

Hudgins, C. J.,

delivered the opinion of the court.

Thomas G. Marshall, a furniture salesman, thirty-five years of age, died as a result of injuries received when struck by a shifting yard engine, owned and operated by the Chesapeake & Ohio Railway Company, immediately after he jumped out of a freight doorway of the M. C. Thomas Furniture Company, situated south of defendant’s passenger station in the city of Charlottesville. The administrator brought this action for wrongful death of decedent and recovered a verdict for $15,000. Judgment was entered on the verdict, which is now before us for review.

The dominant question presented is whether the evidence is sufficient to sustain the verdict of the jury.

The main-line tracks and terminal yard of defendant extend approximately east and west through the city of Charlottesville. The station is to the north of the tracks. There is a long passenger platform that extends beyond the sides of the building and south to the southern rail of the east-bound track. There are two short sidetracks south of and running parallel with the double mainline tracks. There are no floors laid between the rails of the sidetracks; hence the tops of the rails are at least 4 inches higher than the level of the ground. The rails of the fourth or the extreme southern track are connected with the main-line rails by a switch west of the platform. The eastern terminal of this track is a bumper which is built in the track at a point a few feet beyond the east side of the station. This is known as the “short” track and is used as a siding for idle cars and delivery of freight shipment?.

On the south side of the tracks opposite the passenger platform, are four privately owned warehouses, the walls of which extend along the southern boundary of defendant’s right of way. Each of these warehouses has two doorways approximately three feet from the ground and on a level with the floors of freight cars through which incoming and outgoing freight is loaded. The doorways are closed with sliding doors which are opened and closed from the inside, with no outside steps leading up to them.

The first building to the east is the “Stop and Shop” warehouse. The second building is owned by M. C. Thomas Furniture Company, the walls of which are only 3.65 feet from the nearest rail of the “short” track. East of the “Stop and Shop” warehouse is the dead end of 6th street across which is a woven wire fence 6 feet high, extending on the southern boundary of the railroad from the “Stop and Shop” warehouse 43 feet. From the eastern terminus of this woven wire fence a high barbed wire fence extends south 20 feet; thence east 153 feet to a point opposite the bumper.

The regular entrance for employees and customers of the Thomas Furniture Company building is on 6th street, where steps lead to a platform and entrance into the “Stop and Shop” warehouse. From this entrance an aisle extends through the building to the Thomas Furniture Company warehouse. On the east side of the “Stop and Shop” warehouse there is a small gate in the woven wire fence through which pedestrians sometimes pass. It is usually locked, the key being kept by the station master. There are two safe ways of crossing defendant’s right of way, one is an underpass west of the warehouses and the other is an overhead crossing east of the station.

At approximately 8:30 a. m. on March 5, 1946, Marshall took two customers, Mrs. Peterson and Mrs. Black, in the Thomas warehouse to show them furniture which was stored therein. Instead of using the regular entrance to the warehouse the parties used defendant’s right of way, crossing over the four tracks, including the two southern tracks between the rails of which there were no floors. Marshall asked employees of defendant for the key to open the gate leading through the woven wire fence, but was told the key was not available. Thereupon Marshall climbed over the fence, entered the furniture warehouse through the regular entrance, and opened the sliding door to No. 2 freight doorway through which the two women entered.

The parties remained in the warehouse from twenty to twenty-five minutes and started to leave the building through the same door they had entered. Marshall, without looking or listening for an approaching train, jumped from the door to the ground. He assisted Mrs. Black in getting out of the door, turned, faced the door with his left side toward the east for the purpose of assisting Mrs. Peterson. As Mrs. Black’s feet touched the ground she saw the front of an engine approaching approximately 20 feet away. She screamed and stepped back towards the wall and at the same moment Marshall was struck by the projecting parts of the engine and Mrs. Black was knocked off her feet, but as she was falling she was caught and pulled into the doorway by Robert L. Desper who was standing therein. Marshall died the next day, March 6, from injuries received.

A few moments before the accident defendant’s yard engine No. 224, operated by E. A. Sandridge, engineer, had backed east on the “short” track by the warehouses and had picked up an express car which was standing at the eastern terminus of the “short” track. Marshall, while standing between the rail and the doorway, was struck by projecting parts of the engine as it was moving westwardly at approximately 4 miles per hour.

Plaintiff concedes that Marshall was guilty of negligence, but contends that notwithstanding his negligence, she is entitled to recover under the doctrine of the last clear chance. We do not think the evidence was sufficient to submit the case to the jury under this doctrine.

Plaintiff also contends that decedent was a licensee to whom defendant owed the duty of lookout. Defendant contends that decedent was a trespasser to whom defendant owed no such duty. We do not deem it necessary to decide this question, and in the following discussion will assume that decedent was a licensee.

After the engine and tender had passed the doorway going in an easterly direction and had been coupled to the express car, the front of the engine was 137 to 139 feet from the doorway. The engineer stated that as he reversed the movement of the engine and started west he was looking forward “right through the front clear vision glass.” He did not see anybody in the tracks, “there wasn’t anybody in sight to see.” He could not have seen the doorway as the top of the engine obstructed his view. He also said that he could not see a person standing between the rails closer than 60 to 70 feet of the engine because the running board and other projections prevented. F. E. Lawrence, assistant road foreman of engineers for defendant, stated that after the accident he sat in the cab in the operating position of the engineer on this engine, and ascertained by actual measurement that the running board, the boiler and other gadgets totally obstructed his view of a person standing in the center of the tracks closer than 146 feet of the front of the engine. If we accept the estimated distance of Sandridge rather than the measured distance of Lawrence, Sandridge could not have seen decedent if he were in the middle of the tracks within 60 to 70 feet. Whether decedent was standing between the rails immediately before the accident is doubtful. The testimony on this point will be discussed below. However, it does not appear that the engineer could have seen decedent when decedent, without looking, suddenly jumped from a place of safety to a perilous position, in front of the engine approaching with its bell ringing.

Plaintiff’s main contention is that the testimony of Gordon Mays, conductor of the crew of the shifting train, is sufficient to sustain the verdict of the jury on the question of whether defendant had a last clear chance to avoid striking decedent.

Mays testified that when the engine started east from the switch to get the express car he was at the western end of the track, but was not paying any attention to the engine. After the tender of the engine had been coupled to the express car and the train started forward he looked around and saw two people “standing in the track.” He “hollered for them to get back or to watch,” and at the same time gave “the stop signal.” When he realized that the people standing on or near the track would not heed his warning, he began running towards them, holloing to decedent and continued to give the stop signal.

Mays was standing at a point 20 feet north of the switch 265 feet from the No. 2 doorway when he first saw the perilous position of the persons on the track. The engineer in the cab was 60 or 70 feet farther from him and did not see the signal and did not see him, although the flagman on the eastern end of the express car testified that after the car was coupled and the engine had gone forward 25 to 30 feet he saw Mays’ signal and repeated it to the engineer. However, the engineer was not looking back, but was looking forward down the track and had no reason to expect a signal from him.

There was nothing to prevent the engineer from seeing Mays if he had looked slightly to his right and more than 300 feet down the yard. There is a slight curve in the “short” track beginning near the western end of the furniture warehouse and ending at the switch. The natural focus of the eyes of the engineer, if he was keeping a reasonable lookout for obstructions or people on the track, would not necessarily be as far as 300 feet in front of him and slightly to the right of the track. The engineer was not expecting a signal from Mays, nor did Mays expect to give any signals. Under these circumstances, there was no duty on the part of the engineer to look in Mays’ special direction, and his failure to do so, or to see and heed the signal, was not negligence.

The fireman testified that after the express car was coupled he turned around, faced the west, the direction in which the engine was going, started the bell to ringing, and was looking through his window in front of the cab. From this position he could not see the tracks or the space between the buildings and the track as the boiler and the running board obstructed his view. He would have seen the space and the tracks if he had put his head out of the window of the cab, but he did not do this because he knew the walls of the building were too close to the track for him to do so with safety to himself. Just as the front of the engine neared the doorway he saw something over the running board which looked like a person. He yelled to the engineer, who at the same moment heard a scream. The engineer applied “both brakes in emergency and stopped 25 or 30 feet from the door.” This was within as short a distance as it was possible to stop the engine running at the speed stated.

Mays estimated that after he had given his first signal to stop, the train moved forward approximately 70 feet before striking decedent. A train running at the rate of four miles an hour travels approximately 6 feet a second; hence decedent was struck less than twelve seconds after Mays first saw him and began signaling. If the train was running faster than this, as some of the witnesses said it was, then even less time elapsed during the interval. Mays continued to run toward the scene of the accident, and when he arrived the engineer had stopped the engine, gotten out of the cab, and was in front of the engine looking for Mays to aid in moving Marshall’s body from its entanglement with the engine. This evidence tends to show how quicldy decedent was struck after Mays first saw him.

Numerous cases are cited in the briefs to support the respective contentions of the parties, but in none of them is the pertinent doctrine of the last clear chance more clearly defined, and the circumstances under which it should be applied stated, than by Mr. Justice Gregory, speaking for the unanimous court, in Hutcheson v. Misenheimer, 169 Va. 511, 516, 194 S. E. 665:

“The doctrine of the last clear chance is one involving nice distinctions, often of a technical nature, and courts should be wary in extending its application. Van Sickler v. Washington, etc., Ry., 142 Va. 857, 128 S. E. 367. ‘The last clear chance implies thought, appreciation, mental direction, and the lapse of sufficient time to effectively act upon the impulse to save another from injury.’ Barnes v. Ashworth, 154 Va. 218, 153 S. E. 711, 720.

“The doctrine presupposes time for effective action. It is not applicable where the emergency is so sudden that there is no time in which to avoid the accident. Unless there is an appreciable difference in time between the earlier negligence of the plaintiff and the later negligence of the defendant and a last clear chance to avoid the accident afforded the defendant which he fails to avail himself of, the doctrine does not apply.

“The plaintiff is not entitled to recover under the doctrine upon mere peradventure. The burden is upon him to show affirmatively by a preponderance of the evidence that by the use of ordinary care after the peril was discovered the defendant in fact had a last clear chance to avoid the injury. A mere possibility is not sufficient. Washington, etc., Ry. v. Thompson, 136 Va. 597, 118 S. E. 76.”

The failure of plaintiff to carry the burden of proving that defendant had sufficient time for effective action to prevent the injury after Marshall had negligently placed himself in a perilous position is shown more conclusively by the testimony of three of plaintiff’s witnesses who were in or near the doorway at the time decedent was struck.

Mrs. Peterson testified that she, Mrs. Black and Desper followed Marshall to the doorway and when they got there “he (Marshall) jumped out and helped Mrs. Black out and then he turned around to help me out, about that time Mr. Desper was walking up and said Grace go ahead and jump and I said no Bob you come here and help me out.” As Desper walked up Mrs. Black screamed and she (Mrs. Peterson) heard the engine. Desper “threw me back in the building, by that time the engine had hit them both and knocked Mrs. Black around and when it did that Mr. Desper caught her and pulled her in the building.” “Q. Do you think in view of the experience you went through there, you could give the Jury a reasonably accurate idea as to how long Mr. Marshall was out of the building on the track before he was hit? A. Well it couldn’t have been over a minute.”

Desper testified that immediately after Marshall had “helped” Mrs. Black out of the door the engine was “right on them,” and that the engine struck them within a few seconds after Marshall jumped out of the warehouse. The testimony of this witness on this point is illuminating and is copied in a footnote.¹

Mrs. Black said that as the four walked to the door, Marshall was two or three feet ahead and he jumped down and held his hands out for her. She “braced on them and jumped down,” and as she “hit the ground” the approaching engine was within twenty feet of her.²

Mays testified that he saw two people “in the tracks” and Mrs. Black was not certain, but said “I guess we were. I say we were in the middle of the tracks.” As stated, the distance between the walls and the nearest rail was 3.65 feet; from the rail to the middle of the track is 2.35 feet— that is, the middle of the track is 6 feet from the doorway. Marshall could not have been in the middle of the track when he caught Mrs. Black by the arm to help her out of the door, nor could he have been there when he was in a position to help Mrs. Peterson down in like manner. There was no reason for him to go that far from the doorway in the very short interval between the time he jumped out and the time he turned to assist Mrs. Peterson. He was at no time visible to the men in charge of the train from the time he suddenly jumped in front of the engine until he was struck.

Marshall was thoroughly familiar with the conditions in the vicinity of the accident. He knew that the space between the walls of his company’s building and a passing train was too narrow to permit a person to stand therein with safety. He knew that pedestrians were not accustomed to use the doorway as an entrance to the warehouse and that trains were shifting frequently in the yard. He nevertheless very negligently jumped out of the door without either looking or listening for approaching trains. If he had taken even a slight precaution for his own safety, he would have seen the engine approaching, or if he had listened, he would have heard the noise and the bell ringing. Marshall’s negligence not only continued down to the time of the accident, but was the direct, proximate cause of it.

“We have held that the duty of guarding an individual against injury, which the law imposes upon a railroad company, is no higher or greater than that which the individual owes to care for his own safety; that all men know that to be upon a railroad track along which trains are frequently moving is to be in a position of danger, and imposes upon the person so exposing himself the obligation to keep a constant lookout for his own protection.” Southern Ry. Co. v. Bailey, 110 Va. 833, 836, 67 S. E. 365, 27 L. R. A. (N. S.) 379.

Even if it be conceded that defendant was negligent, the negligence of decedent continued up to the very moment he was struck and was, therefore, contemporaneous and concurrent with the negligence of defendant. The emergency created by decedent’s negligence was so sudden that defendant did not discover his perilous position on the track and had no opportunity to avoid inflicting the injuries of which plaintiff complains.

Since the evidence is insufficient to support the verdict of the jury, it becomes our duty to reverse the judgment of the trial court and enter final judgment here for defendant.

Reversed and final judgment.

Spratley, J., concurs in this opinion.

1 “Q. Do you remember hearing Mrs. Peterson ask you to help her Bob, or something of the sort?

“A. Yes, Mrs. Peterson was behind me a very short distance and the rest of them was on the ground and I was just about on the edge to go out too to help her down,'and Marshall had turned around to help her down, when I saw this engine I knocked Mrs. Peterson back in the door and then I caught Mrs. Black when the engine went on by and pulled her in the door.

“Q. You intended to get on the ground?

“A. I was going to get down, yes, sir, to help her down.

“Q. When did you first become conscious of the engine there?

“A. When I saw the front of it and Mrs. Black was off the ground, the engine had her off the ground, the door of the building was about that far from the engine and it just knocked her on around.

“Q. That was the first time you saw the engine?

“A. Just the front of it and then I saw her.

“Q. Could you tell how fast the engine was going?

“A. Well not too fast—a fast walk.

“Q. Did you hear any exclamation or holler from any of the engine crew?

“A. The fireman hollered when he hit Marshall, the fireman hollered to the engineer, that is the only thing I heard. * * *

“Q. How soon after he hollered did the engine stop?

“A. As far as from here to the door (estimated 20 feet) * * he hit Marshall before the fireman hollered or just about the same time it happened just like that. (Indicating by snapping fingers) * * *

“Q. What did you do with reference to Mrs. Black, she was down on the ground, I believe?

“A. Well I caught her around the neck and pulled her back in the door as the engine was going by, the engine had her off the ground '* * *

“Q. And you didn’t see the engine until Mr. Marshall had been struck?

“A. I was about to step down myself, that is right.

“Q. Had you heard it up to that time?

“A. No, sir. I hadn’t heard nothing, none of us heard anything.”

“Cross-Examination

“Q. Mr. Desper, what did Mr. Marshall do when he jumped to the ground?

“A. He didn’t have time to do anything except threw his hands up against the wall and engine hit him.

“Q. He did turn to help Mrs. Black down, didn’t he?

“A. He had already helped her then.

“Q. When he got down the first thing he did was help her down, didn’t he?

“A. That is right and it was right on them like that.

“Q. And the engine was practically there?

“A. Right on them.

“Q. It was not but a few feet away when he got down on the ground?

“A. That is right.

“Q. And you were just behind the two of them weren’t you and you got to be a very busy man there for a few seconds?

“A. Plenty busy.

“Q. You pulled her back with one arm and you pushed Mrs. Peterson back in the building with the other?

“A. I pushed her back I was just fixing to get down to help her down.

“Q. And Mr. Marshall had you seen him look in either direction before jumping out of the building?

“A. No.

“Q. He came straight to the door and jumped down?

“A. He just stepped down, he didn’t have to jump. * *

“Q. Mr. Desper, this all happened in just a very few seconds that Mr. Marshall stepped out of the warehouse?

“A. Yes it did.

“Q. Before he was struck?

“A. Yes.”

2 “Q. Before you jumped out did you hear an engine coming?

“A. No, sir.

“Q. Did you see an engine?

“A. The time I hit the ground I did.

“Q. Do you have any idea how far it was from you?

“A. Well it was not any distance much from us, I don’t know how far it was.

“Q. I imagine it frightened you right much, didn’t it?

“A. Yes, sir.

“Q. What did you do?

“A. Well, I went back to the building thinking the engine would get on by without hitting us.

“Q. You say you went back to the building?

“A. I just took a couple of steps and we were right there.

“Q. Were you pretty much in the middle of the tracks or where were you?

“A. I guess we were, I say we were in the middle of the tracks. * * *

“Q. You thought you could squeeze between the building and the engine?

“A. Yes, sir.

“Q. What happened to you, how did you avoid being killed?

“A. If Mr. Desper hadn’t pulled me back in the building I guess I would have been.”

“Cross-Examination

“Q. * * * when you got to the door did he jump down right away, as soon as he got to the door?

“A. I believe he did, yes, sir.

“Q. And you were right behind him?

“A. Yes.

“Q. He immediately turned to help you down?

“A. That is right.

“Q. Did you see him at any time look down the track either way?

“A. I never noticed.

“Q. As soon as he helped you down he attempted to help Mrs. Peterson down?

“A. That is right.

“Q. In doing that he tried to get up near to the door?

“A. Yes, he was near the door in order to help us down.

“Q. You saw the engine the time you hit the ground it that right?

“A. Well, just about the time.

“Q. Was that about the first time he realized the engine was there?

“A. I think we realized it about the same time.”