RGR, LLC v. Settle

Present: All the Justices
RGR, LLC
OPINION BY
v. Record No. 130633 CHIEF JUSTICE CYNTHIA D. KINSER
OCTOBER 31, 2014 1
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, RGR, LLC, (RGR) appeals the jury's
verdict awarding $2.5 million to Georgia Settle (Mrs. Settle)
for the death of her husband, Charles E. Settle, Sr. (Settle).
We conclude that the circuit court did not err in holding that
RGR owed a duty of reasonable care to Settle or in instructing
the jury on that duty, and in finding that Settle was not
contributorily negligent as a matter of law and that RGR's
negligence was a proximate cause of the collision. We therefore
will affirm the circuit court's judgment sustaining the jury's
verdict. We also conclude, however, that the circuit court
erred in calculating the offset required under Code § 8.01-35.1.
I. FACTS AND PROCEEDINGS
In October 2004, Settle was fatally injured when a train
owned and operated by Norfolk Southern Corporation (Norfolk
1
The Court withdrew the prior opinion rendered June 5,
2014, reported at 288 Va. 1, 758 S.E.2d 215 (2014), after
granting a petition for rehearing by Order dated August 1, 2014.
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. 2 Because the railroad crossing was private, it was
controlled with only "crossbuck signs." There were no stop
signs, warning signals, or barriers.
Adjacent to the railroad tracks, the defendant, RGR,
operated a business offloading lumber from train cars and
reloading it onto tractor-trailers. 3 On the date of the
accident, RGR's lumber was 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.
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
2
The scene of the accident is shown in the photograph
appended to this opinion.
3
RGR had operated its business at that location for 34
years and was leasing the property on which its business was
situated at the time of the accident.
2
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. 4 As a result, Settle, according to the
allegations, could not see the approaching train in sufficient
time to stop and avoid the collision.
Prior to trial, RGR filed a demurrer, arguing that Mrs.
Settle failed to set forth facts that, if proven, would
establish that RGR owed a duty to Settle or that it breached any
duty owed to Settle. In support, RGR argued that Settle was a
stranger to its business, was fatally injured on a third-party's
property, and thus no duty arose. RGR also asserted that Mrs.
Settle's allegations established that Settle was contributorily
negligent as a matter of law. The circuit court overruled the
demurrer. 5
4
Before trial, the claim against Norfolk Southern was
settled, and the claims against the other two defendants were
dismissed with prejudice.
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.
5
RGR also filed a motion to limit Mrs. Settle's evidence to
a "concerted action/joint enterprise" theory of liability, which
the circuit court denied on the grounds that Mrs. Settle
included allegations that RGR was jointly or individually
liable.
3
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),
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
4
feet to the west, the direction from which the train came that
struck Settle's truck, and 600 feet to the east.
The Norfolk Southern representative also testified
regarding the right-of-way. He stated that Norfolk Southern’s
right-of-way was property the company owned adjacent to the
railroad tracks. According to the representative, the right-of-
way "serve[d] multiple purposes[,] the most important" of which
was safety. The representative explained that "maintain[ing]
clear sight distance" was one of the purposes regarding safety:
"A right-of-way allows . . . both our locomotive train crews and
the public to safely proceed across the tracks." He further
testified that RGR’s lumber "was not supposed to be stored in
the right-of-way."
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 he had never come to a complete
stop before crossing the tracks. According to the employee,
5
"you couldn't see like you should" and if the lumber stacks were
"out of the way, it would have been a whole lot better." He
also stated that no one ever complained to RGR or Settle's
employer about the lumber stacks' 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 stated that, "[i]n a panic," a driver will "miss [a gear]
every time." Weston approximated that coming to a complete stop
with a full load while traveling five miles per hour would
6
require about ten feet. 6 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.
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. 7 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
6
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.
7
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.
7
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
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
8
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
train's horn and started slowing the train as it approached the
Route 15 crossing. Between the Route 15 crossing and the Kapp
Valley Way crossing, Janney stated, the engineer again blew the
horn sequence of "two more longs, a short and a long." 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, also claimed that he blew the train's horn
before reaching Route 15, again blew the "two longs, a short and
a long" sequence after Route 15, continued blowing the horn
until the moment of impact, and in fact broke the horn handle
doing so. Street stated that he saw Settle twice before his
truck reached the crossing, that Settle was looking straight
9
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
agreed that "commercial drivers should not stop closer than 15
feet from the rail crossing" to protect the safety of such
drivers.
According to White, RGR's owners visited the site
infrequently and never instructed him or Lawson, the two
employees responsible for the day-to-day operations of the
facility, as to where to stack the lumber offloaded from the
trains or how high to stack it. Lawson believed that Norfolk
Southern's right-of-way extended only 20-25 feet on each side of
the tracks and that RGR’s lumber stacks were not encroaching on
the right-of-way. Lawson conceded, however, that he never
checked to be sure about the width of the right-of-way, and one
of RGR's owners testified that prior to the accident, RGR knew
the right-of-way extended 30 feet from the center of the tracks.
That owner also conceded that the lumber stacks "needlessly
10
cut[ ] down the visibility of a motorist" traveling on Kapp
Valley Way.
At the close of Mrs. Settle's evidence and again at the
close of all the evidence, RGR moved to strike. RGR argued that
it owed no duty to Settle because he was not on RGR's property
and was injured by a third party. According to RGR, Settle's
"status" with respect to RGR's property had "never been
established," and RGR's only duty with respect to the lumber
stacks was owed to Norfolk Southern, not Settle. RGR also
maintained 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,
finding that RGR owed a duty of ordinary care and stating that
"[t]here are too many variables that have been introduced . . .
with regard to speed, distance, [and] times crossed" that
rendered the question of contributory negligence one for the
jury.
Over RGR's objection, the circuit court instructed the jury
that "[i]n the absence of evidence to the contrary, it is
presumed that an owner or vendor of lands knows the area and
boundaries of such, and whether an encumbrance is on his or her
property or adjacent property." The court also instructed the
11
jury, again over RGR's objection, that "[e]very person has the
duty to exercise ordinary care in the use and maintenance of its
property to prevent injury or death to others."
The jury returned a verdict for Mrs. Settle in the amount
of $2.5 million, along with pre-judgment interest from
October 12, 2008. RGR filed a motion to set aside the verdict,
again raising its arguments related to duty, contributory
negligence, and proximate cause. In the alternative, RGR
requested a new trial or a remittitur of the verdict. The
circuit court denied RGR's motions.
On mutual agreement of both parties, however, the circuit
court suspended entry of the final order to address the parties'
disagreement on how to calculate the offset of the $500,000
settlement Mrs. Settle obtained from Norfolk Southern, pursuant
to Code § 8.01-35.1(A)(1). Mrs. Settle claimed that the
provisions of Code 8.01-35.1(A)(1) require that the settlement
amount be deducted from the sum of the $2.5 million verdict plus
the prejudgment interest awarded by the jury. RGR, on the other
hand, argued that the amount of the settlement between Norfolk
Southern and Mrs. Settle should be subtracted from the $2.5
million jury award, with prejudgment interest then calculated on
the difference.
The circuit court agreed with Mrs. Settle and, in a final
order, held that the "amount recovered" under Code § 8.01-
12
35.1(A)(1) included "both the principal amount awarded by the
jury of $2.5 million plus the prejudgment interest also awarded
by the jury," which totaled $3,085,205.48. The court reduced
that sum by the amount of the settlement with Norfolk Southern,
entered judgment against RGR in the amount of $2,585,205.48, and
awarded "post-judgment statutory interest . . . on the principal
verdict amount of $2,500,000.00 from" the date of the verdict
until paid. This appeal followed.
II. ANALYSIS
On appeal, RGR asserts that it owed no duty to Settle and
that the circuit court erred in instructing the jury with
respect to the issue of duty. RGR next argues that Settle was
contributorily negligent as a matter of law and that his
negligence, and not its lumber stacks, was the proximate cause
of the accident. Finally, RGR asserts that the circuit court
erred in calculating the offset required by Code § 8.01-35.1.
We will address the issues in that order.
A. Duty and Jury Instructions
RGR contends that it owed no duty to Settle as a third
party traveling on a private road located on private property
adjacent to the property on which it conducted its business. It
asserts that Virginia does not recognize a duty of reasonable
care with regard to obstructions on private property that do not
"touch upon or invade the private road" nor a duty to protect
13
"mere sight lines." RGR claims that the jury instructions thus
were erroneous because the instructions allowed the case to
proceed on a premises liability theory.
"[W]hether a legal duty in tort exists is a pure question
of law" reviewed de novo on appeal. Volpe v. City of Lexington,
281 Va. 630, 636, 708 S.E.2d 824, 827 (2011) (internal quotation
marks omitted). Likewise, we review de novo whether a jury
instruction accurately states the law. Hawthorne v. VanMarter,
279 Va. 566, 586, 692 S.E.2d 226, 238 (2010). In considering
whether an instruction was properly given, "our responsibility
is to see that the law has been clearly stated and that the
instructions cover all issues which the evidence fairly raises."
Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 55, 710
S.E.2d 736, 740 (2011) (internal quotation marks and citation
omitted). "[A] litigant is entitled to jury instructions
supporting his or her theory of the case if sufficient evidence
is introduced to support that theory and if the instructions
correctly state the law." Id. (internal quotation marks
omitted).
"[N]egligence is the violation of a legal duty which one
owes to another, and where there is no legal duty there is no
actionable negligence." Veale v. Norfolk & Western Ry. Co., 205
Va. 822, 825, 139 S.E.2d 797, 799 (1965). "'Negligence, in law,
involves the conception of a duty to act in a certain way toward
14
others, and a violation of that duty by acting otherwise.'"
Cleveland v. Danville Traction & Power Co., 179 Va. 256, 260, 18
S.E.2d 913, 915 (1942) (quoting Cooke v. Elk Coach Line, Inc.,
180 A. 782, 783 (Del. Super. Ct. 1935)). Thus, "[a]n action for
negligence only lies where there has been failure to perform
some legal duty which the defendant owes to the party injured."
Balderson v. Robertson, 203 Va. 484, 487-88, 125 S.E.2d 180, 183
(1962) (internal quotation marks omitted) (collecting cases).
General negligence principles require a person to exercise
due care to avoid injuring others. Overstreet v. Security
Storage & Safe Deposit Co., 148 Va. 306, 317, 138 S.E. 552, 555
(1927) (recognizing a duty "owed to mankind generally . . . not
to do any act which a person of ordinary prudence could
reasonably apprehend, as a natural and probable consequence
thereof, would subject [another person] to peril"); Charles E.
Friend, Personal Injury Law in Virginia § 1.1.1., at 2 (3rd ed.
2003) ("There is . . . a general duty not to injure others
[that] arises whenever [a] defendant's conduct creates a risk of
harm to others."). The "broad common law maxim" sic utere tuo
ut alienum non laedas requires that "one must so use his own
rights as not to infringe upon the rights of another." Cline v.
Dunlora South, LLC, 284 Va. 102, 107, 726 S.E.2d 14, 17 (2012).
Recognition that "a duty of care is ordinarily owed to avoid
conduct that creates risks of harms to others" is the majority
15
view of both courts and commentators. 2 Dan B. Dobbs, The Law
of Torts § 251, at 2-3 (2d ed. 2011) ("[W]here the defendant by
some action on his part, creates, maintains, or continues a risk
of physical harm, the general standard or duty is the duty of
reasonable care, that is, the duty to avoid negligent
conduct.").
This general duty is owed to those within reach of a
defendant's conduct.
[W]henever one person is by circumstances
placed in such a position with regard to
another . . . that if he did not use
ordinary care and skill in his own conduct
with regard to those circumstances, he would
cause danger of injury to the person or the
property of the other, a duty arises to use
ordinary care and skill to avoid such
injury.
Southern States Grain Mktg. Coop. v. Garber, 205 Va. 757, 761,
139 S.E.2d 793, 796 (1965) (quoting Standard Oil Co. v.
Wakefield, 102 Va. 824, 832, 47 S.E. 830, 832 (1904)).
With regard to property, the common law requires that
"'every person [must] exercise ordinary care in the use and
maintenance of his own property to prevent injury to others.'"
Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957)
(quoting Rice v. Turner, 191 Va. 601, 605, 62 S.E.2d 24, 26
16
(1950)); 8 accord Standard Oil Co., 102 Va. at 828, 47 S.E. at 831
(recognizing the "duty of every man to so use his own property
as not to injure the persons or property of others").
[The] person in possession of property . . .
has a privilege to make use of the land for
his own benefit[.] [B]ut . . . this
privilege is qualified by a due regard for
the interests of others who may be affected
by it. The possessor's right is therefore
bounded by principles of reasonableness, so
as to cause no unreasonable risk of harm to
others in the vicinity.
W. Page Keeton, et al., Prosser & Keeton on Torts § 57, at 386
(5th ed. 1984); accord Cline, 284 Va. at 107, 726 S.E.2d at 17
(holding that the common law principle "sic utere tuo ut alienum
non laedas . . . precludes use of land so as to injure the
property of another"); Schulz v. Quintana, 576 P.2d 855, 856
(Utah 1978) ("A landowner may use his property as he sees fit,
subject, however, to having due regard for the safety of others
who may be affected by it. The owner is under an obligation to
make such reasonable use of his property that it will not cause
unreasonable harm to others in the vicinity thereof."); see also
Justice v. CSX Trans., Inc., 908 F.2d 119, 123-24 (7th Cir.
1990) (applying common law duty that "a person may not use his
land in such a way as unreasonably to injure the interests of
8
Perlin and Rice both addressed negligence claims involving
personal injuries inflicted by cattle that had escaped from the
premises where they were confined.
17
persons not on his land - including owners of adjacent lands[,]
other landowners and the users of public ways" to a company that
placed obstacles blocking the view of a traveler approaching a
railroad crossing); Lawson v. Safeway Inc., 119 Cal. Rptr. 3d
366, 372-73 (Cal. Ct. App. 2010) (applying duty of ordinary care
to defendant when the defendant's parked truck obstructed the
view of motorists at an intersection); Langen v. Rushton, 360
N.W.2d 270, 275 (Mich. Ct. App. 1984) (holding that the
defendant had "a duty . . . to provide motorists . . . with an
unobstructed view" as they entered traffic); Boudreaux v. Sonic
Indus., Inc., 729 P.2d 514, 516-17 (Okla. Civ. App. 1986)
(applying the duty of a property owner "to maintain his property
in such a manner that . . . it does not create an unreasonable
hazard to travelers upon the abutting roadway," to a restaurant
whose sign obstructed the view of travelers because "it is
immaterial whether the injury is caused by physical contact or
by another means such as here").
At common law, however, this duty did not extend to natural
conditions existing on land as opposed to artificial conditions
such as RGR's lumber stacks. 9 Compare Cline, 284 Va. at 106, 726
S.E.2d at 16 ("At common law, a landowner owed no duty to those
outside the land with respect to natural conditions existing on
9
No one suggests that the lumber stacks were anything other
than an artificial condition on RGR's land and Norfolk
Southern's right-of-way.
18
the land, regardless of their dangerous condition."), with
Restatement (Second) of Torts § 364 (1965) ("A possessor of land
is subject to liability to others outside of the land for
physical harm caused by a structure or other artificial
condition on the land, which the possessor realizes or should
realize will involve an unreasonable risk of such harm.").
Likewise, an owner or possessor of land adjacent to a highway
has no common law duty to persons traveling on the highway with
regard to natural conditions on the land. See Cline, 284 Va. at
109, 726 S.E.2d at 18 ("The duty owed by adjoining property
owners is to refrain from engaging in any act that makes the
highway more dangerous than in a state of nature or in the state
in which it has been left.") (emphasis added); Price v. Travis,
149 Va. 536, 542, 140 S.E. 644, 646 (1927) (observing that the
"duty of others is to abstain from doing any act by which any
part of the highway would become more dangerous to the traveler
than in a state of nature, than in the state in which the
[public entity] has left it") (emphasis added); see also
Driggers v. Locke, 913 S.W.2d 269, 272 (Ark. 1996) (holding that
a landowner had no duty to control vegetation on his land for
the benefit of users of an adjacent highway); Williams v. Davis,
974 So. 2d 1052, 1062 (Fla. 2007) (finding a landowner had no
duty to motorists with regard to natural conditions contained
wholly within the private property's boundaries); Pyne v.
19
Witmer, 512 N.E.2d 993, 997 (Ill. App. Ct. 1987) (refusing to
impose duty on a landowner to remove foliage on his property so
that motorists approaching an intersection could see other
motorists); Krotz v. CSX Corp., 496 N.Y.S.2d 190, 191 (N.Y. App.
Div. 1985) (finding no duty requiring a landowner to control
vegetation on property for the benefit of users of a public
highway).
RGR does not dispute these common law tort principles
regarding duty. Instead, it contends that this case erroneously
proceeded to the jury on a theory of premises liability. On
brief, RGR states that it "agrees this is not a premises
liability case." It claims, however, that the circuit court
nevertheless relied on premises liability precedent in several
of its holdings, including whether RGR owed a duty to Settle.
RGR misconstrues Mrs. Settle's position and the circuit
court's holdings. In her fourth amended complaint, Mrs. Settle
alleged that RGR, as well as the other named defendants, "owed a
duty of reasonable due care" to Settle "in the care,
maintenance, upkeep, [and] inspection" of both Norfolk
Southern's right-of-way and the property upon which the lumber
was stacked. Mrs. Settle further alleged that the defendants
"breached their duties of reasonable care" to Settle by, among
other things, "allowing . . . stacks of lumber to exist such
20
that they blocked the view of motorists approaching the Kapp
Valley Crossing."
Moreover, the circuit court instructed the jury that
"[e]very person has the duty to exercise ordinary care in the
use and maintenance of its property to prevent injury or death
to others." 10 Based on the common law principles already
discussed with regard to duty, this instruction is a correct
statement of the law, and the circuit court did not err in
giving it. See Perlin, 198 Va. at 864, 96 S.E.2d at 808;
Prosser & Keeton on Torts § 57, at 386. The instruction
supports Mrs. Settle's theory of the case. See Bennett, 282 Va.
at 55, 710 S.E.2d at 740. It also demonstrates that premises
liability was not an issue and that the case was not tried on
that basis. To suggest otherwise is simply incorrect.
RGR also advances several other theories as to why it was
not subject to the common law duty outlined above. Despite its
10
RGR also argues that the circuit court erred in giving
the jury instruction stating that "[i]n the absence of evidence
to the contrary, it is presumed that an owner or vendor of land
knows the area and boundaries of such, and whether an
encumbrance is on his or her property or adjacent property."
RGR asserts that the instruction pertained to a premises
liability theory for which there was no evidence. As the
circuit court stated, however, "the issue of where the right-of-
way [is] and the knowledge of the right-of-way [was] raised."
One of RGR's owners testified that RGR was unaware of the extent
and size of Norfolk Southern's right-of-way. This instruction
addressed that issue and did not allow the jury to find RGR
liable on a premises liability theory. The circuit court did
not err in giving it.
21
statement on brief acknowledging that this case is not one of
premises liability, RGR nevertheless attempts to interject
premises liability concepts by arguing that it owed no duty to
Settle because he "was, at most, an invited guest using a
private roadway and a private railroad crossing on" another
entity's property. (Emphasis added.) Regardless of Settle's
status in relation to the owner of Kapp Valley Way, we stated in
Dudley v. Offender Aid & Restoration of Richmond, Inc., 241 Va.
270, 401 S.E.2d 878 (1991), that "'[i]n order for the actor to
be negligent with respect to the other, his conduct must create
a recognizable risk of harm to the other individually, or to a
class of persons – as, for example, all persons within a given
area of danger – of which the other is a member.'" Id. at 278,
401 S.E.2d at 882-83 (quoting Restatement (Second) of Torts §
281 cmt). "[W]henever the circumstances . . . are such that an
ordinary prudent person could reasonably apprehend that, as a
natural and probable consequence of his act, another person
rightfully there will be in danger of receiving an injury, a
duty to exercise ordinary care to prevent such injury arises."
Overstreet, 148 Va. at 318, 138 S.E. at 555.
The existence of this duty does not depend on proving a
particular relationship;
it arises from that basic and necessary
regulation of civilization which forbids any
person because of his own convenience, to
22
recklessly, heedlessly or carelessly injure
another. Nobody is permitted by the law to
create with impunity a stumbling block, a trap, a
snare or a pitfall for the feet of those
rightfully proceeding on their way.
Louisville & Nashville R.R. Co. v. O'Neil, 119 Va. 611, 627, 89
S.E. 862, 866 (1916) (internal quotation marks omitted); see
also Friend, Personal Injury Law in Virginia § 1.1.1., at 2
("[T]he only 'relationship' which must exist is a sufficient
juxtaposition of the parties in time and space to place the
plaintiff in danger from the defendant's acts.").
Settle was "within a given area of danger" created by the
location of RGR's lumber stacks. The lumber was situated within
Norfolk Southern's right-of-way and obstructed the sight line of
motorists on Kapp Valley Way as they approached the railroad
crossing. Dudley, 241 Va. at 278, 401 S.E.2d at 883. One of
the purposes of the railroad's right-of-way was to maintain
clear sight lines for motorists and the train crew. Settle was
also "rightfully" traveling on Kapp Valley Way within feet of
RGR's lumber stacks at the time of the accident. Overstreet,
148 Va. at 318, 138 S.E. at 555. Thus, RGR owed a duty to
Settle to exercise ordinary care. See id.
RGR next argues that this Court has never "recogniz[ed] a
duty to protect mere sight lines." RGR is correct that we have
never found a duty of owners or possessors of land to protect
the sight lines of motorists traveling on adjacent roadways, and
23
we make no such holding here. Rather, we affirm what has been
consistently recognized: one has a duty to exercise ordinary
care in the use and maintenance of one's property to prevent
injury to others. See Perlin, 198 Va. at 864, 96 S.E.2d at 808.
The negligent act in this case was RGR's obstruction of the
sight line at the railroad crossing by stacking its lumber
within Norfolk Southern's right-of-way, an area designed to
maintain clear sight lines for motorists and the train crew.
Applying the common law duty to particular factual settings,
however, does not necessarily result in liability in all
instances. See Boggs v. Plybon, 157 Va. 30, 38, 160 S.E. 77, 80
(1931) ("[S]ome particular act which would be actionable
negligence under one set of circumstances [will] give no basis
for recovery in another."); Smith v. Lamar, 212 Va. 820, 823,
188 S.E.2d 72, 74 (1972) ("The amount or degree of diligence and
caution which is necessary to constitute reasonable or ordinary
care depends on the circumstances and the particular
surroundings of each specific case."); Dobbs, The Law of Torts §
253, at 10 ("[J]udges must follow the reasonable care standard,
leaving it to juries to apply the reasonable person standard to
particular conduct.").
Instead, the question whether under a particular set of
facts one is liable for obstructing the sight line of a
traveling motorist raises the issues of breach of duty for
24
failure to exercise ordinary care in the circumstances and
proximate causation. Whether a duty to exercise ordinary care
is owed does not depend on those issues and their resolution by
the factfinder. In other words, in framing the duty question as
whether a "duty to protect . . . sight lines" is recognized, RGR
attempts to transform factual determinations about breach and
proximate causation to be resolved by the factfinder into a
legal determination made by the trial court as a matter of law.
While "[t]he law determines the duty, . . . the jury, upon the
evidence, determines whether the duty has been performed."
Commonwealth v. Peterson, 286 Va. 349, 357, 749 S.E.2d 307, 311
(2013) (internal quotation marks omitted); see Whitt v.
Silverman, 788 So. 2d 210, 221 (Fla. 2001) ("[T]he imposition of
a duty is nothing more than a threshold requirement that if
satisfied, merely opens the courthouse doors.") (internal
quotation marks omitted). The law of negligence constantly
requires juries to apply general principles of duty to
particular factual scenarios. See Cline, 284 Va. at 113, 726
S.E.2d at 20 (Lemons, J., dissenting) (rejecting a landowner's
specific duty to inspect trees in favor of a "simple application
of ordinary negligence principles [and] imposing a duty of
reasonable care upon all landowners"). This case is no
different.
25
Similarly, RGR's argument that it owed no duty to Settle
because RGR had no "actual or constructive knowledge" that the
lumber stacks created a dangerous condition is without merit.
Although RGR again uses nomenclature usually associated with
premises liability, see Culpepper v. Neff, 204 Va. 800, 804, 134
S.E.2d 315, 318-19 (1964) ("[a]ctual or constructive knowledge
on the part of the owner of a defect causing the injury is
necessary to render him liable" to a business invitee), the
proper question is one of foreseeability and pertains to what
constitutes negligence, not to whether a duty to exercise
ordinary care exists.
Actionable negligence requires that
there must be a legal duty, a breach thereof
and a consequent injury which could have
been reasonably foreseen by the exercise of
reasonable care and prudence, and where
there is no breach or violation of a legal
duty to take care for the safety of the
person or property of another there can be
no actionable negligence.
Atlantic Co. v. Morrisette, 198 Va. 332, 333, 94 S.E.2d 220,
221-22 (1956) (collecting cases); see also Virginia Elec. &
Power Co. v. Savoy Constr. Co., 224 Va. 36, 46, 294 S.E.2d 811,
818 (1982) ("Foreseeability is relevant to a determination of
proximate cause."); Maroulis v. Elliott, 207 Va. 503, 509-10,
151 S.E.2d 339, 344 (1966) ("Liability ensues when injury
results from a risk or hazard which may be reasonably foreseen,
26
although the precise injury may not be foreseen."); Limberg v.
Lent, 206 Va. 425, 426, 143 S.E.2d 872, 873 (1965) (noting that
"the defendant did not fail to observe a duty owed . . . if it
was not reasonably foreseeable that the defendant's actions
might cause injury"); Cleveland, 179 Va. at 259, 18 S.E.2d at
915 ("[F]oreseeability of injury to one to whom duty is owed is
of the very essence of negligence" and "[i]f injurious
consequences are not foreseen as result of the conduct, then
that conduct is not negligence.").
Generally the test for negligence is whether
the act or omission was done in the exercise
of reasonable care. Whether reasonable care
was exercised depends upon what a reasonably
prudent person, with knowledge of the
circumstances, ought to have foreseen in
regard to the consequences of his act or
omission. However, the precise nature of
the consequences need not be foreseen. "It
is enough if the act [or omission] is such
that the party ought to have anticipated
that it was liable to result in injury to
others."
Barnette v. Dickens, 205 Va. 12, 16, 135 S.E. 109, 112 (1964)
(quoting Norfolk & W. Ry. Co. v. Whitehurst, 125 Va. 260, 264,
99 S.E. 568, 569 (1919)). In sum, whether RGR breached its duty
of ordinary care by stacking its lumber within Norfolk
Southern's right-of-way because it was "reasonably foreseeable
that [its] actions might cause injury," Limberg, 206 Va. at 426,
143 S.E.2d at 873, must be distinguished from the question
whether a duty existed.
27
In accord with these principles, the jury was instructed
that RGR was "not required to have anticipated or foreseen the
precise injury or death that occurred, but it is sufficient that
a reasonably prudent person would have anticipated or foreseen
that some injury might probably result from the negligent act."
RGR does not challenge this instruction.
Moreover, RGR's employee testified that the number of
travelers using Kapp Valley Way and the railroad crossing had
increased due to the construction project, and that the project
had been ongoing for "quite some time." One of RGR's owners
admitted that RGR knew the width of Norfolk Southern's right-of-
way. 11 In addition, numerous witnesses testified that the lumber
stacks blocked motorists' view of the railroad tracks. Given
this testimony, the jury was entitled to infer that RGR breached
its duty of reasonable care because a reasonably prudent person
ought to have foreseen the consequences of stacking the lumber
within Norfolk Southern's right-of-way at the point where Kapp
Valley Way crosses the railroad tracks.
Fundamentally, RGR's position that it owed no duty to
Settle would result in the wholesale rejection of a duty to
exercise ordinary care in circumstances such as those here and
would absolve one of liability for negligence no matter how
11
Norfolk Southern's right-of-way is also a matter of
public record.
28
dangerous the conduct or foreseeable the injury. See Cleveland,
179 Va. at 259, 18 S.E.2d at 915; Dobbs, The Law of Torts § 253,
at 9 ("Elevating a decision about particular facts to a no-duty
rule will . . . exclude[e] liability not only in the particular
case but also in others that are quite different on their facts
and may call for a different result."). We decline RGR's
invitation to make such a ruling. Therefore, we conclude that
the circuit court did not err in holding that RGR had "the duty
to exercise reasonable care in the use and maintenance of its
property to prevent injury or death to others" and in so
instructing the jury.
B. Contributory Negligence
RGR next contends that the circuit court erred in refusing
to grant its motions to strike because the evidence established,
as a matter of law, that Settle was contributorily negligent for
failing to look and listen for the train. As the prevailing
party in the trial court, Mrs. Settle is entitled to have the
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). Armed with a jury
verdict approved by the circuit court, Mrs. Settle occupies the
"most favored position known to the law." Bennett, 282 Va. at
54, 710 S.E.2d at 739 (internal quotation marks omitted). The
circuit court's judgment "is presumed to be correct, and we will
29
not set it aside unless the judgment is plainly wrong or without
evidence to support it." Id.
"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); accord Sawyer v. 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). These are questions of fact to be
decided by the factfinder unless "reasonable minds could not
differ about what conclusion could be drawn from the evidence."
30
Jenkins, 269 Va. at 388-89, 611 S.E.2d at 407 (collecting
cases).
On appeal, however, a defendant has a heavier burden.
Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 170, 427 S.E.2d
724, 729 (1993). A defendant "must show that there is no
conflict in the evidence on contributory negligence, and that
there is no direct and reasonable inference to be drawn from the
evidence as a whole to sustain a conclusion that the plaintiff
was free from contributory negligence." Id.
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
discovered it." Norfolk & W. Ry. Co. v. Greenfield, 219 Va.
122, 132, 244 S.E.2d 781, 786-87 (1978). 12 Reasonable care is
the "degree of care a reasonably prudent person would exercise
under the same or similar circumstances." Thomas v. Settle, 247
Va. 15, 21, 439 S.E.2d 360, 364 (1994). "Repeatedly, we have
12
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." RGR does not challenge these
instructions.
31
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, 245 Va. at 171, 427 S.E.2d at 730 (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). "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." Id. at 317, 1 S.E.2d at 257.
In numerous cases involving vehicular-train collisions, we
have considered whether a driver was contributorily negligent.
For example, in Wright, the plaintiffs' ward was an experienced
dump truck driver and was "thoroughly familiar" with a
particular public railroad crossing. 245 Va. at 171, 427 S.E.2d
at 730. The driver 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
32
the configuration of his truck's cab and the angle of the street
relative to the railroad tracks. Id. According to testimony,
however, he typically drove with his air conditioning and radio
on in the cab. Id. at 164, 427 S.E.2d at 726. The driver was
struck when he "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. at 171, 427 S.E.2d at
730.
The plaintiffs' 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 driver was
contributorily negligent as a matter of law. Id. at 166, 427
S.E.2d at 727. We agreed. Noting that he "was not forced to
approach the crossing with his right window closed, and
presumably with his air conditioning and radio operating," we
said that the driver 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 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. Having failed to
do so, "the only conclusion to be drawn from the whole evidence"
33
was that the driver "was the architect of his own misfortune."
Id. at 172, 427 S.E.2d at 730; see also Greenfield, 219 Va. at
133, 244 S.E.2d at 787 (identifying the train's "continuous
signals" and actions the decedent could have taken to avoid the
crash).
Similarly, we held that the decedent was contributorily
negligent as a matter of law in Norfolk & W. Ry. Co. v. Benton,
160 Va. 633, 169 S.E. 560 (1933). There, the decedent was
traveling in his automobile at 10-15 miles per hour when he
drove his vehicle onto a railroad crossing and was struck by a
train, resulting in his death. Id. at 636, 169 S.E. at 561.
The train was partially, but only briefly, obstructed by train
cars standing on a side track, and "[a] clear view . . . could
be had as the crossing was approached because one's vision of
the train would have been unobstructed for a considerable
distance beyond the cars" on the side track. Id. Although a
passenger in the automobile testified that a flagman from the
railway company waved the decedent onto the tracks, the Court
held that such action should have indicated the proximity of the
train, which was in plain view of the decedent. Id. at 642-43,
169 S.E.2d at 564. The Court concluded that the plaintiff
"fail[ed] to take any precaution for his own safety." Id. at
642, 169 S.E.2d at 563.
34
In contrast, the facts and circumstances in Kimball v.
Friend, 95 Va. 125, 27 S.E. 901 (1897), were such that
reasonable persons could differ as to whether the decedent was
guilty of contributory negligence. The decedent, traveling on a
bicycle, was struck and killed by a train as he crossed railroad
tracks that passed through a narrow cut in the land. Id. at
136-37, 27 S.E. at 902-03. The road on which the decedent was
traveling narrowed at the tracks, with "the view of the railroad
track on either side of the crossing . . . practically shut off
by the sides of the cut to a traveler . . . until he got to the
crossing." Id. at 134, 27 S.E. at 902. The tracks in the
direction from which the train came, however, were visible in
several places from the road on which the decedent traveled
before reaching the narrow cut that led to the crossing. Id. at
137, 27 S.E. at 903. The warning gong and lights failed to
indicate the presence of the train, and two witnesses walking in
the same direction toward the crossing said they did not hear
the approach of the train until it struck the decedent. Id.
Although the decedent had a duty to exercise reasonable
care to avoid putting himself into a position in which he could
not escape the collision, the fact that he failed to do so was
not conclusive evidence that he was there by
his own negligence. He may have been there
in consequence of the defendants' negligence
. . . . Whether he used due care to
ascertain if a train was approaching
35
depended upon inferences from facts to be
found by the jury. The manner in which he
approached the track; the speed at which he
was travelling; the obstructions to a view
of the track on which the engine was
approaching; the negligence of the
defendants . . . were among the facts to be
found by the jury, and from which facts in
connection with all the other circumstances
and facts of the case the main fact of due
care or negligence on the part of the
deceased was to be found.
Id. at 138-39, 27 S.E. at 903.
The Court also held that the jury was entitled to "infer
that the deceased had placed some reliance upon the fact that
the electric gong failed to sound as the engine approached the
crossing, and was thereby misled." Id. at 140, 27 S.E. at 903-
04.
[W]hile courts and text-writers differ as to
the degree of reliance that may be placed
upon the invitation which an open gate or
silent gong gives to the traveler to cross,
they generally, if not universally, hold
that the same degree of care and caution is
not required of him, as if there was no such
invitation.
Id. at 140, 27 S.E. at 904; see also Benton, 160 Va. at 641, 169
S.E. at 563 ("[T]he circumstances under which, and to what
extent, [a traveler] may relax his vigilance depends on the
surroundings."). "The question of negligence in such a case,"
the Court concluded, "is peculiarly one for the consideration of
the jury." Kimball, 95 Va. at 140, 27 S.E. at 904; see also
Seaboard Air Line Ry. v. Abernathy, 121 Va. 173, 180, 92 S.E.
36
913, 916 (1917) (holding that where plaintiff's vision was
obstructed at a crossing, it would have been error to decide "as
a matter of law that the plaintiff should, within the space of
less than eight feet, six inches, have been able, while his car
was slowly moving, to look in both directions and stop in time
to have avoided the accident").
In Southern Railway Co. v. Bryant, 95 Va. 212, 28 S.E. 183
(1897), the Court noted the importance of a traveler's hearing
faculty when his or her view is obstructed. There, the Court
held the defendant railway company failed to give due warning of
the train's approach to a crossing on a public highway. Id. at
218, 28 S.E. at 185. In addition, the decedent, "on account of
the obstruction of the view [of the tracks] by [a] hill, was
unable to see the track . . . until he got to it." Id. at 219-
20, 28 S.E. at 185. As a result, the decedent "had to rely on
the faculty of hearing" and without the train's horn being
sounded, "there was . . . nothing to warn him the train was
near." Id. at 220, 28 S.E. at 185. Under these circumstances,
the Court held that it "cannot be inferred as a matter of law"
that because the decedent "drove upon the track without
stopping, [that] he did not listen." Id. at 221, 28 S.E. at
185.
Recognizing the general rule that a person approaching a
railroad crossing must exercise ordinary care by looking and
37
listening and keeping off the track if warned of a nearby train,
the Court, however, stated that the general rule "is not
inflexible, nor wholly without exception." Id. at 219, 28 S.E.
at 185. We explained that
[i]t would be unreasonable to require a
traveler, upon approaching a railroad
crossing over a highway to look, when, by
reason of the nature of the ground or other
obstructions, he could not see; in other
words, when compliance with the general rule
would be impracticable or unavailing. 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 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.
Id.
Similarly, 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 quite 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 and drove slowly onto the
38
crossing, whereupon his truck was struck by the backward
movement of the train that had just crossed. Id.
The Court 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.
"[T]he question, we think, was for the jury
whether reasonable caution forbade his going
forward in reliance on the sense of hearing,
unaided by that of sight. No doubt it was
his duty to look along the track from his
seat, if looking would avail to warn him of
the danger. This does not mean, however,
that if vision was cut off by obstacles,
there was negligence in going on, any more
than there would have been in trusting to
his ears if vision had been cut off by
darkness of the night."
Id. at 323, 1 S.E.2d at 260 (quoting Pokora v. Wabash Ry. Co.,
292 U.S. 98, 101 (1934)). The Court further stated that if a
driver's "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. at 322, 1
S.E.2d at 259; see Southern Ry. Co. v. Aldridge, 101 Va. 142,
149, 43 S.E. 333, 335 (1903) ("It is true that if he had stopped
39
or paused the accident might not have occurred, but we do not
feel warranted in saying that, as matter of law, his failure to
stop made a case of contributory negligence so plain as to
justify the court in withdrawing it from the consideration of
the jury.").
In the case now before us, the evidence, viewed in the
light most favorable to Mrs. Settle, showed that trains
typically approached from the east, opposite from the direction
of the train that struck Settle's truck. Based on Settle's
familiarity with the crossing due to his frequent trips to the
construction project that had been ongoing for some time, the
jury could have inferred that Settle too was aware of the usual
direction in which the trains traveled at that location.
Settle's familiarity with the crossing likewise supports the
inference that he knew RGR's lumber stacks blocked his view of
the railroad tracks to the right as he traveled south on Kapp
Valley Way. Several buildings on RGR's leased property,
according to Humphreys, also obstructed Settle's line of sight
as he descended the hill to the crossing. In such a scenario,
Settle was forced to rely on his hearing. See Bryant, 95 Va. at
220, 28 S.E. at 185.
Numerous witnesses, however, stated that they never heard
the train's horn between the Route 15 and Kapp Valley Way
crossings, and several affirmatively stated that the train did
40
not sound its horn. The train's conductor and engineer were the
only witnesses who testified to the contrary, with the engineer
stating that not only did he blow the horn after the Route 15
crossing, but also sounded the horn constantly until the moment
of impact. The jury, however, was entitled to reject the
testimony of the conductor and engineer. See Elliott v.
Commonwealth, 277 Va. 457, 462, 675 S.E.2d 178, 181 (2009) ("The
credibility of witnesses and the weight accorded the evidence
are matters solely for the fact finder."). The "same degree of
care and caution is not required" when an open gate, silent
gong, or absence of a train's horn invites a driver to proceed
across railroad tracks. Campbell, 172 Va. at 321, 1 S.E.2d at
259 (internal quotation marks omitted) (collecting authorities).
The jury also heard that Settle's ability to hear noises outside
the cab of his truck were diminished by the sounds inside the
cab while driving. "In such circumstances the question . . .
was for the jury whether reasonable caution forbade his going
forward in reliance on the sense of hearing, unaided by that of
sight." Id. at 323, 1 S.E.2d at 260.
The evidence also showed that because Kapp Valley Way
narrowed at the crossing to single-vehicle width, drivers
typically took turns crossing the railroad tracks and waved each
other across. As Settle descended the hill to the crossing
prior to his truck being hit by the train, Mendosa and Bonilla
41
both waved their arms out their windows. Construing the
evidence in the light most favorable to Mrs. Settle, the jury
could have concluded that because RGR's lumber stacks impaired
Settle's ability to see the approaching train, he viewed
Mendosa's and Bonilla's waving as an indication that he could
proceed across the railroad tracks.
Unlike the plaintiffs in Wright and Greenfield, reasonable
care did not require Settle to undertake any particular action
to avoid the collision. See Wright, 245 Va. at 171-72, 427
S.E.2d at 730 (identifying numerous acts the decedent could have
taken to avoid causing the accident); Greenfield, 219 Va. at
133, 244 S.E.2d at 787 (same). RGR argues, however, that
Settle's failure to look when he crossed the railroad tracks
conclusively establishes his contributory negligence. Although
the train's conductor and engineer both testified that Settle
was looking straight ahead, their accounts are inconsistent as
to whether they saw Settle as soon as he emerged from behind the
lumber stacks or as he entered the crossing. That Settle was
looking straight ahead as he entered the crossing does not speak
to whether he looked as he emerged from behind the lumber
stacks.
More importantly, Settle's duty to look and listen cannot
be divorced from his actions as he approached the crossing and
the surrounding circumstances. The witnesses agreed that Settle
42
was traveling slowly, no more than five miles per hour, as he
approached the railroad crossing. At the point that Settle
could see the train after emerging from behind the lumber
stacks, the front of his truck would have been approximately
12.5 feet from the edge of the rails. If Settle was traveling
at 5 miles per hour, or 7.33 feet per second, and had the normal
human reaction time of 1.5 seconds, of which the circuit court
took judicial notice, Settle's truck would have traveled 11 feet
in the time it took him to become aware of the train and apply
the truck's brakes. With the weight of his truck, it would have
taken an additional 10 feet to stop the truck once he applied
the brakes, carrying him well past the limited space in which he
had to stop before reaching the rails.
As in Bryant, "[i]t cannot be inferred as a matter of law .
. . that because [Settle] drove upon the track without stopping,
he did not [look]." 95 Va. at 221, 28 S.E. at 185. But even if
he in fact did not look, that failure was not contributory
negligence as a matter of law because the jury could have
inferred that, based on the circumstances, looking would have
been futile due to the location of RGR's lumber stacks within
Norfolk Southern's right-of-way. Thus, RGR's contention that
Settle is guilty of contributory negligence as a matter of law
is essentially an argument that he was legally required to stop
in order to look and listen. But this has never been the law.
43
It has been said in numerous cases that the
railroad track itself was a signal of
danger, and imposed upon one approaching it
the duty to look and listen, but it has in
no case been held that it was his duty to
stop in order to look and listen, or that it
was his duty when in a vehicle to get out in
order to look and listen.
Aldridge, 101 Va. at 146, 43 S.E. at 334. No doubt if Settle
had stopped or paused, the accident might not have occurred.
But as in Aldridge, "we do not feel warranted in saying that, as
[a] matter of law, his failure to stop made a case of
contributory negligence so plain as to justify the court in
withdrawing it from the consideration of the jury." Id. at 149,
43 S.E. at 335 (collecting cases).
Furthermore, stopping in order to look and listen would
have placed Settle in peril from a train approaching from the
east, the opposite direction from which the train approached
when it struck his truck. As Settle approached the crossing,
his sightline to the east was 600 feet, a distance covered in
only nine seconds by a train traveling 45 miles per hour, the
speed of the train in this case. Settle's truck was 30 feet
long, the lumber pile was 12.5 feet from the railroad tracks,
and the track itself was five feet wide. According to Weston,
Settle's truck accelerated from a standstill at about 1-2 miles
per hour, a speed incapable of traversing the 47.5 foot distance
to clear the tracks and avoid a collision with a train
44
approaching from the east, the direction from which most trains
traveled at that crossing.
Whether Settle, as a matter of law, failed to exercise
reasonable care under the circumstances, requires "that there
[be] no conflict in the evidence on contributory negligence, and
that there [be] no direct and reasonable inference to be drawn
from the evidence as a whole to sustain a conclusion that
[Settle] was free from contributory negligence." Wright, 245
Va. at 170, 427 S.E.2d at 729. Contrary to RGR's argument,
there was indeed conflicting evidence pertaining to contributory
negligence, and it was for the jury to determine the credibility
of the witnesses and to decide which inferences to draw from the
facts. Settle'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." Campbell, 172 Va. at 319, 1 S.E.2d at 258; Jenkins,
269 Va. at 389, 611 S.E.2d at 407 (contributory negligence is an
issue of law "only when reasonable minds could not differ about
what conclusion could be drawn from the evidence").
In conclusion, we reiterate what the Court said many years
ago in Kimball. Settle had a duty to exercise reasonable care
to avoid putting himself into a position in which he could not
45
escape the collision. Nevertheless, the fact that he failed to
avoid the collision is
not conclusive evidence that he was there by
his own negligence. He may have been there
in consequence of the defendants' negligence
. . . . Whether he used due care to
ascertain if a train was approaching
depended upon inferences from facts to be
found by the jury. The manner in which he
approached the track; the speed at which he
was travelling; the obstructions to a view
of the track on which the engine was
approaching; [and] the negligence of the
defendants . . . were among the facts to be
found by the jury.
95 Va. at 138-39, 27 S.E. at 903.
Therefore, we conclude that the circuit court did not err
in refusing to find Settle contributorily negligent as a matter
of law. The court's judgment on this issue was not "plainly
wrong or without evidence to support it." Code § 8.01-680.
C. Proximate Causation
RGR argues that its lumber stacks were not the proximate
cause of the collision between Settle's truck and the train.
RGR contends, instead, that if Settle had exercised the
necessary diligence and care when approaching the railroad
crossing, the collision would not have occurred.
"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." Ford Motor Co. v.
46
Boomer, 285 Va. 141, 150, 736 S.E.2d 724, 728 (2013).
Generally, the issue of proximate causation is a question of
fact to be resolved by a jury. Jenkins v. Payne, 251 Va. 122,
128, 465 S.E.2d 795, 799 (1996). However, when reasonable
people cannot differ, the issue becomes a question of law for
the court to decide. Id.
Based on the facts already set forth, the jury was entitled
to infer that without the sight obstruction created by the
location and height of the lumber stacks, Settle would have been
able to see the approaching train as he traveled toward the
crossing. In other words, if the lumber stacks had not been
situated as they were on the day of the accident, within Norfolk
Southern's right-of-way that was designed to maintain clear
sight lines for motorists and the train crew, Settle would have
been in position to look for an approaching train "'at a time
and place'" when looking would have been effective. Wright, 245
Va. at 171, 427 S.E.2d at 730 (quoting Epling, 189 Va. at 557,
53 S.E.2d at 820).
Contrary to RGR's argument, our decision in Sugarland Run
Homeowners Association v. Halfmann, 260 Va. 366, 535 S.E.2d 469
(2000), is distinguishable and not dispositive on the issue of
proximate causation. There, a vehicle struck an eight-year old
boy as he rode his bicycle from a private pathway onto a public
street. Id. at 370-71, 535 S.E.2d at 471-72. The issue on
47
appeal was whether the alleged defects in the design of the
pathway and its intersection with the public street were a
proximate cause of the accident. Id. at 371, 535 S.E.2d at 472.
Unlike the case before us, the intersection and public street
were "clearly visible" to anyone traveling on the pathway, and
the case was "not one where [the boy] had to ride his bicycle
into the edge of [the street] and look around [certain
obstacles] in order to determine whether any vehicle was
approaching." Id. at 373-74, 535 S.E.2d at 473.
In resolving the question of proximate causation, "'[e]ach
case necessarily must be decided upon its own facts and
circumstances.'" Banks v. City of Richmond, 232 Va. 130, 135,
348 S.E.2d 280, 283 (1986) (quoting Huffman v. Sorenson, 194 Va.
932, 937, 76 S.E.2d 183, 187 (1953)). The evidence in this case
is sufficient to support the conclusion that Settle's view of
the approaching train was obstructed by the lumber stacks and
that the location of the lumber stacks was therefore a proximate
cause of the collision. We cannot say as a matter of law that
reasonable people could not differ on this issue. Jenkins, 251
Va. at 128, 465 S.E.2d at 799. Thus, the circuit court did not
err in refusing to grant RGR's motions to strike and set aside
the verdict on the issue of proximate causation.
D. Offset of Settlement Amount
Finally, RGR challenges the circuit court's decision to
48
calculate the offset under Code § 8.01-35.1 by adding the
prejudgment interest awarded by the jury to the $2.5 million
award before deducting the $500,000 settlement between Mrs.
Settle and Norfolk Southern. RGR argues that in Upper Occoquan
Sewage Authority v. Blake Construction Company, 275 Va. 41, 655
S.E.2d 10 (2008), we held that the phrase "principal sum
awarded" as used in Code § 8.01-382 does not include prejudgment
interest and that post-judgment interest therefore may not
accrue on prejudgment interest. RGR asserts that we should now
construe Code § 8.01-35.1 "in harmony" with Code § 8.01-382 and
prevent a double recovery by similarly limiting the phrase
"amount recovered" found in Code § 8.01-35.1 to include only the
principal amount awarded, in this case the jury award of $2.5
million. 13
In response, Mrs. Settle argues that the phrase "amount
recovered" in Code § 8.01-35.1 "unmistakeably" means the amount
of damages awarded plus any prejudgment interest. This is so,
according to Mrs. Settle, because prejudgment interest is
13
Part of RGR's argument is based on the false premise that
the circuit court imposed post-judgment interest on the combined
amount of the principal award and the prejudgment interest.
That assertion is incorrect. The circuit court expressly stated
that post-judgment interest was awarded solely on the principal
of $2.5 million. See Upper Occoquan, 275 Va. at 67, 655 S.E.2d
at 25 (holding that "the 'principal sum awarded' as contemplated
by Code § 8.01-382 is that element of the plaintiff's damages
that compensates the plaintiff for the actual harm sustained,
but not any prejudgment interest on those damages").
49
"normally designed to make the plaintiff whole and is part of
the actual damages sought to be recovered." Shepard v. Capitol
Foundry of Va., 262 Va. 715, 722, 554 S.E.2d 72, 76 (2001)
(internal quotation marks omitted). 14 Thus, she asserts that the
term "amount recovered" cannot be interpreted to mean only the
"principal sum awarded" as used in Code § 8.01-382.
The interpretation of these statutes is a pure question of
law reviewed de novo. Torloni v. Commonwealth, 274 Va. 261,
267, 645 S.E.2d 487, 490 (2007). When a statute is clear and
unambiguous, we apply its plain meaning. Id.
Code § 8.01-35.1(A)(1) states that
[w]hen a release or a covenant not to sue is
given in good faith to one of two or more
persons liable for the same injury to a
person or property, or the same wrongful
death[,] [i]t shall not discharge any other
person from liability for the injury,
property damage or wrongful death unless its
terms so provide; but any amount recovered
against the other person or any one of them
shall be reduced by any amount stipulated by
the covenant or the release, or in the
amount of the consideration paid for it,
whichever is the greater.
(Emphasis added.) We have previously interpreted the "clear and
unambiguous language of Code § 8.01-35.1" to effectuate three
14
In contrast to prejudgment interest, "'post-judgment
interest is not an element of damages, but is a statutory award
for delay in the payment of money actually due.'" Upper
Occoquan, 275 Va. at 63-64, 655 S.E.2d at 23 (quoting Dairyland
Ins. Co. v. Douthat, 248 Va. 627, 631-32, 449 S.E.2d 799, 801
(1994)).
50
primary purposes: "preserv[ing] the right of action against the
non-settling tortfeasor, provid[ing] that 'any amount recovered'
from the non-settling tortfeasor must 'be reduced' by the amount
received from the settling tortfeasor, and require[ing] the
court to consider the amount paid by the settling tortfeasor in
determining the amount for which judgment should be entered."
Torloni, 274 Va. at 267-68, 645 S.E.2d at 491.
In relevant part, Code § 8.01-382 states that "[i]n any . .
. action at law . . . the final order, verdict of the jury, or
if no jury the judgment . . . of the court, may provide for
interest on any principal sum awarded." (Emphasis added.) As
RGR argues, we have held that the phrase "principal sum awarded"
means "that element of the plaintiff's damages that compensates
the plaintiff for the actual harm sustained, but not any
prejudgment interest on those damages that the trier of fact
might also award." Upper Occoquan, 275 Va. at 67, 655 S.E.2d at
25.
The two statutes obviously use different terms, i.e., "any
amount recovered" and "principal sum awarded," but the two terms
are not in the same legislative act 15 and the two statutes, Code
§§ 8.01-35.1 and -382, address different subjects. Cf. Zinone
v. Lee's Crossing Homeowners Ass'n, 282 Va. 330, 337, 714 S.E.2d
15
See 1979 Acts ch. 697 and 1964 Acts. ch. 219,
respectively.
51
922, 925 (2011) ("[W]hen the General Assembly has used specific
language in one instance, but omits that language or uses
different language when addressing a similar subject elsewhere
in the Code, we must presume that the difference in the choice
of language was intentional."); Industrial Dev. Auth. of the
City of Roanoke v. Board of Supervisors, 263 Va. 349, 353, 559
S.E.2d 621, 623 (2002) ("When the General Assembly uses two
different terms in the same act, those terms are presumed to
have distinct and different meanings.").
In construing the statutes, we conclude that the purposes
underlying Code § 8.01-35.1 require that the $500,000 settlement
amount be subtracted from the $2.5 million damage award before
calculating the prejudgment interest also awarded by the jury.
Code § 8.01-35.1 apportions liability among joint tortfeasors
when one tortfeasor settles with a plaintiff and another one
does not. By requiring that the "amount recovered" against a
non-settling tortfeasor be reduced by the amount stipulated in
the covenant or release, the General Assembly clearly intended
that joint tortfeasors share the cost of liability for the same
damage caused by their tortious conduct. Sharing this cost
entitles the non-settling tortfeasor to an offset of any
settlement between the settling tortfeasor and the plaintiff.
To construe § 8.01-35.1 as the circuit court did negates that
benefit by requiring the non-settling tortfeasor to pay interest
52
on the offset amount, i.e., money that tortfeasor does not owe.
In other words, the circuit court required RGR to pay interest
on the $500,000 paid by Norfolk Southern in settlement with Mrs.
Settle. In our view, that method of calculating the offset does
not effectuate the purposes of Code § 8.01-35.1.
We therefore conclude that the circuit court erred in its
determination of the total sum from which the settlement amount
would be deducted.
III. CONCLUSION
For these reasons, we will affirm the circuit court's
judgment except with regard to its calculation of the offset
pursuant to Code § 8.01-35.1. On that issue, we will reverse
the circuit court's judgment and remand for further proceedings
consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
53
54
JUSTICE McCLANAHAN, with whom JUSTICE LEMONS and JUSTICE GOODWYN
join, dissenting.
I dissent from the Court's judgment because I would hold
that RGR owed no legal duty to Settle under Virginia law as it
existed before today. Instead of analyzing the specific duty
RGR owed to Settle in accordance with our prior decisions
carefully defining and limiting the duty owed in negligence
cases, the Court imposes an abstract duty to mankind generally,
based on general maxims. In my view, this newly-created, ever-
present duty overturns decades of entrenched and long-accepted
Virginia law, requires owners of property and occupants of land
to use their property with due care given the whole world in all
instances, and effectively removes duty as an element of all
property and land-use negligence actions.
In addition to my disagreement with the Court's holding on
the duty owed by RGR to Settle, I believe that Settle was
contributorily negligent as a matter of law.
I. Duty Owed by RGR to Settle Under Virginia Precedent
Application of established Virginia precedent does not
support the recognition of a duty owed by RGR to Settle.
At the time of the accident, Settle was traveling on Kapp
Valley Way, a private road located on the premises owned by Wolf
Realty, which lay adjacent to the premises occupied by RGR. 1
Norfolk Southern allowed Wolf Realty's private road to cross its
right-of-way and tracks. Mrs. Settle claims that the lumber
stack located on RGR's premises and the railroad's right-of-way
property obstructed Settle's view of Norfolk Southern's
eastbound train as he approached the railroad crossing.
RGR operated a business offloading lumber from traincars
and loading it onto tractor trailers. Norfolk Southern was
aware of the lumber that was offloaded from its trains, and that
its right-of-way was used for that purpose. In her complaint,
Mrs. Settle alleged that Norfolk Southern was fully aware of the
sight obstructions at Kapp Valley Crossing created by RGR's
stacked lumber. Mrs. Settle also alleged that "Norfolk Southern
employees also conducted mandatory inspections of the track at
Kapp Valley Crossing twice per week for a period of at least
four months during which they could not help but observe the
sight obstruction created by the lumber stacked" on Norfolk
Southern's property. The railroad's right-of-way adjoining Kapp
Valley Way was not physically designated, and the railroad does
1
Wolf Realty owned the land along the south side of the
railroad tracks on both sides of Kapp Valley Way. Wolf Realty
also owned the land on both sides of Kapp Valley Way along the
north side of the railroad tracks.
On the north side of the tracks, Wolf Realty's land was bordered
on the west by the parcel of land owned by Rose Investments and
leased by RGR.
56
not have a standard right-of-way width for a private railroad
crossing. An employee of Norfolk Southern testified that he had
inspected Norfolk Southern's property regularly, had observed
RGR's lumber and was not concerned with its placement. He
further testified that he had observed the lumber prior to the
accident and it did not cause him any concern for the motoring
public at the crossing.
As indicated by the majority, in her fourth amended
complaint, Mrs. Settle alleged that RGR, as well as the other
named defendants, "owed a duty of reasonable due care" to Settle
"in the care, maintenance, upkeep [and] inspection" of both
Norfolk Southern's right-of-way and the property upon which the
lumber was stacked. According to the complaint, that duty of
care included, but was not limited to, "keeping them [sic]
premises free from defects, dangerous conditions, and
obstructions." Mrs. Settle further alleged that the defendants
"breached their duties of reasonable care . . . by failing to
inspect, upkeep and maintain the property," and in so doing,
among other things, "allowing . . . stacks of lumber to exist
such that they block the view of motorists approaching the Kapp
Valley Crossing."
Because Mrs. Settle asserts that RGR owed a duty of
reasonable care to keep its "premises free from defects,
dangerous conditions, and obstructions," the issue of duty
57
necessarily implicates the liability of RGR for conditions
existing on its land to persons using the private road located
on Wolf Realty's land. Although RGR's lumber pile extended
seven feet onto Norfolk Southern's property, Mrs. Settle
contends and reiterated during oral argument that under her
theory of the case, an occupant of land could be potentially
liable for a sight obstruction existing solely on its land, and
that RGR could be held liable for the obstruction created by its
lumber without regard to its occupancy of the premises where the
lumber was placed. Thus, the dispositive issue in this appeal
is whether owners and occupants of land have a legal duty to
maintain their property and that of adjoining landowners so as
to refrain from obstructing the view of drivers on adjacent
land. 2
2
Determining this issue is not "[e]levating a decision
about particular facts to a no-duty rule" or "attempt[ing] to
transform factual determinations about breach and proximate
causation to be resolved by the factfinder into a legal
determination" as the majority suggests. The "no-duty" rule is
properly invoked "when all cases they cover fall substantially
within the reason that frees the defendant of responsibility for
his fault." 2 Dan B. Dobbs, The Law of Torts § 253 at 9 (2d ed.
2011). Therefore, just as this Court has properly determined
whether owners or occupants of land owe a duty to protect
travelers on an adjoining public roadway from natural conditions
on their land, see Cline v. Dunlora South, LLC, 284 Va. 102,
110, 726 S.E.2d 14, 18 (2012), it is appropriate to determine
whether owners or occupants of land owe a duty to maintain
sightlines on their land for travelers on adjacent private
lands.
58
Common law imposes a duty of inspection, maintenance and
upkeep of property on the individual who possesses the property.
See Volpe v. City of Lexington, 281 Va. 630, 636, 708 S.E.2d
824, 827 (2011) ("In Virginia, a landowner owes an invitee 'the
duty of using ordinary care to maintain its premises in a
reasonably safe condition and to warn . . . of any hidden
dangers.'") (citation omitted); see also Winn-Dixie Stores, Inc.
v. Parker, 240 Va. 180, 182, 396 S.E.2d 649, 650 (1990)
(describing the duty to an invitee as a duty to have the
premises in a reasonably safe condition). There is no common
law duty imposed upon a neighbor concerning the maintenance
and/or inspection and upkeep of adjoining property. Thus,
Norfolk Southern may be responsible for any alleged failure to
maintain its right-of-way and any duty it owes to Settle because
of its agreement which allowed Kapp Valley Way to cross its
property and tracks. Likewise, RGR may be responsible for the
maintenance and upkeep of its property to the extent it owes a
duty to a traveler on an adjoining roadway, such as Mr. Settle.
We have not previously recognized a duty owed by an owner
or occupant of land to maintain the premises so as not to
obstruct the view of an individual using a private road on
adjacent premises. With regard to premises abutting a public
roadway, we have held that occupants of land owe a duty to
travelers of the roadway to exercise ordinary care to prevent
59
artificial conditions originating from the premises from
escaping the boundaries of land onto the roadway. The source of
this duty springs from the right of travelers to use those
portions of roadways "which [have] been dedicated to . . .
public travel." Price v. Travis, 149 Va. 536, 542, 140 S.E.
644, 646 (1927) (quoting Appalachian Power Co. v. Wilson, 142
Va. 468, 473 129 S.E. 277, 278 (1925)). This principle dictates
that "[n]o private person has a right to place any obstruction
which interferes with this right on any part of the highway
within its exterior limits." Id. (quoting Dickey v. Maine
Telegraph Co., 46 Me. 483, 485 (1859)) (emphasis added). Thus,
the duty to travelers on a public roadway exists only with
regard to conditions that encroach upon the roadway itself. 3
For example, in Price, we noted two specific instances in
which an occupant of land might be liable for artificial
conditions affecting a public road. First, we stated that an
owner or occupant of land may be liable for "build[ing] such
things under the surface of the sidewalk or street, as areaways,
hatchways, coal holes, etc., that are inherently dangerous
unless properly protected by safe guards and covers; that the
owner must at all times maintain in such condition as to insure
the safety of travelers upon the street." 149 Va. at 543, 140
3
A landowner has no duty "to protect travelers on an
adjoining public roadway from natural conditions on his or her
land." Cline, 284 Va. at 110, 726 S.E.2d at 18.
60
S.E. at 646. Second, we noted that an owner or occupant of land
may face liability for suspending objects "over or near to the
street - such as awnings, poles, cornices, window shutters, etc.
- that falling onto a street or sidewalk might thereby injure a
traveler." Id. Similarly, we have held that owners or
occupants of land have a duty to exercise ordinary care in
keeping domestic animals off public highways. Stout v.
Bartholomew, 261 Va. 547, 557, 544 S.E.2d 653, 658 (2001);
Wilkins v. Sibley, 205 Va. 171, 173, 135 S.E.2d 765, 766 (1964);
Rice v. Turner, 191 Va. 601, 605, 62 S.E.2d 24, 26 (1950). 4
4
Outside the context of public roadways, our precedent
likewise does not support the imposition of a duty owed by RGR
to Settle. We have recognized several situations in which a
landowner or possessor of land has a duty to protect against
injury to property on adjacent land. However, in each case, the
condition at issue physically intruded upon the adjoining parcel
that was harmed. See e.g., Fancher v. Fagella, 274 Va. 549,
555-56, 650 S.E.2d 519, 522 (2007) (holding that landowners owe
a duty to protect against actual or imminent harm to property
caused by encroaching branches or roots); Third Buckingham
Community, Inc. v. Anderson, 178 Va. 478, 486, 17 S.E.2d 433,
436 (1941) (holding that an "owner of land cannot collect . . .
water into an artificial channel or volume and pour it upon the
land of another, to his injury") (internal quotation marks
omitted); Akers v. Mathieson Alkali Works, 151 Va. 1, 17-18, 144
S.E. 492, 495 (1928) (holding that a landowner has a duty to
prevent injurious substances from escaping from its premises and
damaging the property of another); Collins v. George, 102 Va.
509, 516, 46 S.E. 684, 686 (1904) (holding that "persons in the
lawful use of fire" owe a duty of ordinary care to prevent it
from spreading and injuring the property of others). The lumber
stack located on RGR's premises did not encroach upon Wolf
Realty's premises or Kapp Valley Way.
61
Our precedent establishes, therefore, that the duty owed by
owners and occupants of land to travelers on abutting public
roadways derives from the right of travelers to use that portion
of the highway that has been dedicated to public travel and
extends only to artificial conditions intruding on the exterior
limits of the roadway. We have never recognized that an owner
or occupant of land has a duty to protect travelers on public
roadways from potential dangers caused by artificial conditions
wholly contained outside the exterior limits of the roadway,
including artificial conditions on adjacent land that may
obstruct a traveler's view. Thus, even if we were to recognize
that RGR owed the same duty of care to Settle, a traveler on a
private road located on private property, that it would owe to a
traveler on an abutting public highway, our precedent does not
support the existence of a duty owed by RGR to maintain its
premises so as to keep it free of sight obstructions for the
users of Kapp Valley Way.
In fact, I believe it is unreasonable to impose a burden
upon landowners to maintain sightlines for private roads on
neighboring properties. Such a burden would place landowners at
the mercy of the neighbor's choice of where to locate any such
private roads and require landowners to calculate sightlines for
any activity undertaken whether it involves structures, crops,
or foliage.
62
This view is in accord with that of numerous state courts that
have refused to impose such a duty even with regard to public
rights-of-way. See, e.g., Coburn v. City of Tucson, 691 P.2d
1078, 1080-81 (Ariz. 1984) (reaffirming principle that common
law does not place the possessor land abutting public highways
under any obligation to use or refrain from using his land so as
to protect members of the traveling public on abutting streets);
Rodgers v. Ray, 457 P.2d 281, 283-84 (Ariz. App. 1969) (no duty
owed by owner or possessor of land abutting public highway to
refrain from using land so as to obstruct view for those using
highway); Driggers v. Locke, 913 S.W.2d 269, 271-74 (Ark.
1996)(no duty owed by landowner to maintain holly bushes so as
not to obscure vision of motorists); Williams v. Davis, 974
So. 2d 1052, 1062-63 (Fla. 2007) (no duty owed by landowner to
motorists on abutting roadways as to maintenance of foliage
unless it extends into the public right-of-way); Adame v. Munoz,
678 N.E.2d 26 (Ill. App. Ct. 1997) (no duty owed by landowners
to maintain property so as not to obstruct view of travelers on
adjacent highway); Shaw v. Soo Line Railroad Co., 463 N.W.2d 51,
55-56 (Iowa 1990) (private landowner and its business invitee
owed no duty to motorists to guard against risk of harm from
obstructed visibility); Bohm v. Racette, 236 P. 811, 812 (Kan.
1925) (no duty owed by landowner to refrain from maintaining
hedges that obstruct view of motorists); Krotz v. CSX Corp., 496
63
N.Y.S.2d 190, 191 (N.Y. App. Div. 1985) (no common-law duty
imposed upon landowner to control vegetation for benefit of
users of a public highway). 5
The majority seemingly acknowledges that there is no duty
in Virginia of owners or possessors of land to protect sight
5
Apparently suggesting that there would be no duty if the
obstruction to visibility was "natural" as opposed to
"artificial," the majority cites to decisions from other state
courts, including several cited herein, in which the courts
found no duty to users of adjacent highways when the condition
was "vegetation" or "foliage." However, vegetation and foliage
are artificial conditions when planted or maintained by an
individual. See Fancher, 274 Va. at 554, 650 S.E.2d at 521.
More importantly, in the cases cited by the majority, the
courts' holdings were based on the fact that the alleged
obstruction did not encroach upon the highway and not upon any
distinction between natural and artificial conditions. See
Driggers, 913 S.W.2d at 272 (court's holding that landowner owed
no duty maintain holly bushes so as not to obscure vision of
motorists based on its prior holding in Ben M. Hogan & Co. v.
Krug, 351 S.W.2d 451, 456 (Ark. 1961), ruling that owner owed no
duty to motorist not to erect a gravel pile that obstructed
motorist's view); Williams, 974 So. 2d at 1062 (court noting it
has rejected a rule of no liability for natural conditions and
explaining that the determinative factor is whether the
condition intrudes upon the public right-of-way); Pyne v.
Witmer, 512 N.E.2d 993, 997 (Ill. App. Ct. 1987) (court's
refusal to impose duty based on principle summarized in Adame,
678 N.E.2d at 29 that "[t]here is simply no duty in Illinois on
the part of landowners to maintain their property in such a way
that it does not obstruct the view of travelers on an adjacent
highway, and this refusal to find such a duty applies even where
the obstruction is an artificial condition."); Krotz v. CSX
Corp., 496 N.Y.S.2d at 191 (court's ruling based on holding in
Hayes v. Malkan, 258 N.E.2d 695, 697 (N.Y. 1970), that private
landowners owe no duty to protect users of public ways from
obstructing objects located on such private property, which
holding was also applied to a fence that obstructed the view of
users of public right-of-way in Echorst v. Kaim, 732 N.Y.S.2d
285, 287 (N.Y. App. Div. 2001)).
64
lines of motorists traveling on an adjacent roadway. However,
the majority extends Virginia law to impose such a duty upon a
person lawfully placing property on the premises of another with
the acquiescence of the owner of the premises. Any duty Norfolk
Southern may have owed to Settle because of the permission it
gave the users of the private road to cross its right-of-way and
tracks would not have been transferred to RGR, nor could it be
without RGR receiving some notice of its existence. To the
extent there was a duty to keep Norfolk Southern's property
clear to protect travelers on an adjacent private roadway, any
such duty could only, if at all, be owed to Settle by Norfolk
Southern. To the extent RGR's lumber was on Norfolk Southern's
property by seven feet, it therefore could not have activated an
additional duty owed by RGR to a traveler on the private
roadway. The circuit court should have granted RGR's motion to
strike, as it concerns the alleged failure to maintain, inspect
and keep Norfolk Southern's right-of-way. RGR did not owe a
duty to Mr. Settle to care for, maintain, keep or inspect
Norfolk Southern's property.
II. Majority's Adoption of Broad Maxim as Duty
The majority opinion, in essence, allows one who fails to
prove a duty was owed to him or her to assert a duty owed by a
defendant because of the "due care owed to mankind generally."
Overstreet v. Security Storage & Safe Deposit Co., 148 Va. 306,
65
317, 138 S.E. 552, 555 (1927). This is a sea change in Virginia
jurisprudence that will have wide-ranging ramifications in
Virginia tort law and expose practically every individual sued
for a tort to have a fact finder determine if the general duty
to mankind was breached.
The majority holds that RGR owed a legal duty to Settle
because "[g]eneral negligence principles require a person to
exercise due care to avoid injuring others" and "exercise
ordinary care in the use and maintenance of [one's] property to
prevent injury to others." Therefore, the majority has
established a general duty not to be negligent as the specific
duty owed in property and land-use negligence actions.
At its outset, this reasoning is flawed because it adopts a
broad maxim as the specific duty. Such general maxims certainly
underlie our analysis of whether a specific duty is owed in a
given case, but a general maxim does not constitute the duty a
particular defendant owes to a particular plaintiff. For
example, in Rice, 191 Va. at 605, 62 S.E.2d at 26, relied upon
by the majority, we acknowledged the general duty upon persons
"to exercise ordinary care in the use and maintenance of [one's]
own property to prevent injury to others." The jury instruction
actually approved by the Court, though, was a specific duty
tailored to the facts of that case and to a specific class of
persons. Id. at 605-06, 62 S.E.2d at 26 ("We find no error in
66
the ruling of the trial court, instructing the jury that it was
the duty of defendant to exercise ordinary care to prevent his
cow from running at large beyond the boundaries of his own
land."). 6
In this case, the circuit court instructed the jury that
"[e]very person has the duty to exercise ordinary care in the
use and maintenance of its property to prevent injury or death
to others." The instruction may be correct as a general
statement of the law, but it is not a correct instruction
concerning a case in which the allegation of negligence is a
failure to maintain a premises so as to prevent injury to one
traveling on a roadway. A review of the cases cited to support
the jury instruction indicate that they are cases in which the
use and maintenance of the properties involved was such that
6
The majority also cites to Schulz v. Quintana, 576 P.2d
855, 856 (Utah 1978), for the court's recitation of the
obligation of a landowner "to make such reasonable use of his
property that it will not cause unreasonable harm to others in
the vicinity thereof." Yet the court in Schulz held that the
landowner owed no duty to the plaintiff who was traveling along
a highway when he stopped his car, entered the defendant's land,
and tripped and fell on a wooden stake. After discussing
specific duties that landowners owed to users of abutting
highways including those who may stray a few feet off course,
the court ruled there was no duty owed by the landowner to the
plaintiff since he ceased being a traveler on a highway and
became a trespasser. Id. at 856-57.
67
some dangerous instrumentality located thereon escaped from the
premises of the owner and caused direct physical injury. 7
Contrary to the majority's suggestion otherwise, this Court
has consistently required that the plaintiff be an identifiable
individual or a member of a class of identifiable individuals to
justify the imposition of a duty owed by the defendant to the
particular plaintiff. 8
"The question of liability for negligence
cannot arise at all until it is established that
the man who has been negligent owed some duty to
the person who seeks to make him liable for his
negligence. . . A man is entitled to be as
negligent as he pleases towards the whole world if
he owes no duty to them."
Dudley v. Offender Aid & Restoration of Richmond, Inc., 241 Va.
270, 277, 401 S.E.2d 878, 882 (1991) (quoting Le Lievre v.
Gould, 1 Q.B. 491, 497 (1893)). Thus, "there is no such thing
as negligence in the abstract, or in general, or as sometimes is
said, in vacuo. Negligence must be in relation to some person."
7
Perlin v. Chappell, 198 Va. 861, 863-64, 96 S.E.2d 805,
807-08 (1957) (bull escaped fenced-in area of a slaughterhouse
and stockyard, and injured a worker in a nearby shipyard); Rice
v. Turner, 191 Va. 601, 604-06, 62 S.E.2d 24, 25-26 (1950) (a
cow escaped from a fenced-in pasture and wandered onto a highway
in front of a car, causing an accident); Standard Oil Co. v.
Wakefield, 102 Va. 824, 826-28, 47 S.E. 830, 830-31 (1904)
(failure to properly adjust a valve allowing escape of dangerous
gas, causing injury when escaped gas exploded).
8
If the majority means to establish a duty owed by owners
and occupants of land to exercise due care in the use of their
land with regard to "drivers on private roads located on
adjacent lands," this would constitute a new duty that before
today did not exist under Virginia law and is not supported by
our existing precedent as previously discussed.
68
Kent v. Miller, 167 Va. 422, 425-26, 189 S.E. 332, 334 (1937).
"The scope of the duty will vary with the circumstances of each
case, but it is always a duty owed to a discernible individual,
or to a class of which that individual is a member." Dudley,
241 Va. at 278, 401 S.E.2d at 883; see also Marshall v. Winston,
239 Va. 315, 320, 389 S.E.2d 902, 905 (1990) (for negligence to
be actionable, the tort victim must be "an identifiable person,
or a member of an identifiable class of persons, to whom the
defendants owed a duty."); Kent, 167 Va. at 426, 189 S.E. at 334
("What may be negligence as to one person may not be so as to
another."); Boggs v. Plybon, 157 Va. 30, 38, 160 S.E. 77, 80
(1931) (Because the "duty varies in each case as the facts vary
. . . some particular act which would be actionable negligence
under one set of circumstances would give no basis for recovery
in another."). 9
The general common law duty that the Court believes to
justify the circuit court's instruction in this case is present
9
"In the early English law, there was virtually no
consideration of duty" or "any notion of a relation between the
parties, or an obligation to any one individual as essential to
the tort." W. Page Keeton, et al., Prosser & Keeton on Torts §
53 at 356-57 (5th ed. 1984). In other words, "[t]he defendant's
obligation to behave properly apparently was owed to all the
world, and he was liable to any person whom he might injure by
his misconduct." Id. However, "when negligence began to take
form as a separate basis of tort liability, the courts developed
the idea of duty, as a matter of some specific relation between
the plaintiff and the defendant." Id.
69
in all tort cases. In this instance, plaintiff's decedent was
operating a motor vehicle on a private roadway. Virginia common
law has delineated the duty owed to one who is operating a motor
vehicle on a roadway. It appears that the majority opinion will
undermine tort law as we know it and require a jury verdict in
every tort case based upon whether or not a plaintiff decides to
"impose the duty of general tort law," whether they have pled a
breach of that duty or not.
In the context of property and land-use negligence, the
majority's adoption of a general maxim as the specific duty in
this case renders meaningless the stratified duties this Court
has previously established according to the status of the
plaintiff in relation to the defendant. As we have explained,
"there is a marked difference between the duties which the
occupant of land owes to trespassers, licensees and invitees,
respectively. Trespassers and bare licensees, as a rule, take
the risk of the place as they find it." Pettyjohn & Sons v.
Basham, 126 Va. 72, 77-78, 100 S.E. 813, 814-15 (1919); see also
Franconia Assocs. v. Clark, 250 Va. 444, 446-47, 463 S.E.2d 670,
672-73 (1995). 10 However, an owner or occupant of land is liable
10
In fact, the majority's adoption of the abstract duty is
incongruent with the decision rendered in Lasley v. Hylton, ___
Va. ___, ___ S.E.2d ___ (2014)(this day decided) in which the
Court invoked the specific duty owed by a landowner to a social
guest, a more narrow duty than the general maxim relied upon by
the majority in this case.
70
to a licensee, including a social guest, for injuries caused by
affirmative negligence. Bradshaw v. Minter, 206 Va. 450, 453,
143 S.E.2d 827, 829 (1965). In contrast, an owner or occupant
of land "must use ordinary care to keep his premises reasonably
safe for an invitee." Tate v. Rice, 227 Va. 341, 345, 315
S.E.2d 385, 388 (1984). An owner or occupant of land, though,
has no duty to warn an invitee of an unsafe condition that is
"open and obvious." Id. 11 Under the majority's holding, the
decisions we have rendered defining the duties owed by owners
and occupants of land to trespassers, licensees, and invitees
are no longer relevant, if not impliedly overruled because every
plaintiff can now choose to rely upon this maxim if the duty
previously imposed by common law does not suit it. In this
instance, the majority rules that RGR owed a duty to Settle, who
was not an entrant on RGR's premises, that it would not have
owed to a trespasser or licensee on its premises. 12
11
As the majority notes, RGR contends that the circuit
court relied upon premises liability law to impose a duty in
this case. RGR's point is well-taken because the duty imposed
by the circuit court mirrored the duty owed by an owner or
possessor of land to an invitee on its premises, which Settle
certainly was not. Yet, this duty failed to take into account
that an owner or occupant of land owes no duty to warn of an
open and obvious condition, which the stack of lumber surely
was.
12
The decisions we have rendered on duties owed by owners
and occupants of land have depended not only on the status of
the injured party in relation to the defendant, but on the use
71
In actions against owners and occupiers of land by
plaintiffs injured off the defendant's premises, we have
similarly required a relation between the defendant and
plaintiff that would justify the imposition of a duty. As
discussed previously, we have imposed limited duties upon owners
and occupants of land to travelers on abutting public highways
and owners of adjoining land depending on the act or condition
encroaching upon the abutting highway or property. For example,
in Cline, 284 Va. at 107-10, 726 S.E.2d at 17-18, we recognized
the "broad common law maxim" precluding "use of land so as to
injure the property of another" but analyzed and determined
whether there was a duty owed by the defendant to the plaintiff
in that case based on the specific duties owed by landowners to
travelers on abutting public highways and the nature of the
13
encroachment onto the highway. Under the majority's holding
in this case, the adoption of the broad maxim as the duty owed
of the premises and act complained of as well. For example, we
have "decline[d] to extend to a householder the duty imposed
upon commercial establishments, carriers, municipalities, and
landlords to remove natural accumulations of snow and ice within
a reasonable time after the end of a storm." Tate, 227 Va. at
348, 315 S.E.2d at 390.
13
See Price, 149 Va. at 543, 140 S.E. at 646 (recognizing
"two classes of things that an adjoining landowner may do at his
peril in connection with a public easement"); see also cases
cited supra note 4.
72
eliminates the necessity of any assessment by the courts of the
duty owed by a defendant to a plaintiff in a given case.
In sum, the Court's adoption of a broad maxim as the duty
in this case is inconsistent with the specifically defined
duties, including their limitations, this Court has previously
imposed upon owners and occupants of land. Because the Court
adopts this general principle as the specific duty in this case
without regard to the plaintiff's status or relation to the
defendant or the nature of the purportedly dangerous condition
on the premises, the Court's holding imposes on all owners or
occupants of property a duty that is broader than that
previously imposed under circumstances in which either the duty
owed was more limited or even non-existent.
Furthermore, because the Court approves a jury instruction
reciting this broad maxim as the controlling duty, specific jury
instructions traditionally given in cases against property
owners based upon these specific duties are no longer relevant.
See, e.g., 1 Virginia Model Jury Instructions – Civil, Nos.
23.000 through 23.130 and 29.000. A plaintiff can now elect to
rely on this general maxim and its corresponding instruction as
establishing the duty. Under the Court's holding, therefore,
the general maxim establishes the duty in property and land-use
negligence cases and it is no longer necessary or even
appropriate to determine what specific duty a particular
73
defendant owes to a particular plaintiff in a given case. Thus,
for all intents and purposes, the Court has eliminated duty as
an essential element in actions alleging negligence against
owners and occupants of property.
III. Contributory Negligence
I also disagree with the majority's holding that the issue
of Settle's contributory negligence was properly submitted to
the jury. As recited by the majority, this case was previously
decided, and upon a petition for rehearing, the Court's opinion
was withdrawn and a new majority opinion is now issued. I
believe the Court's initial opinion, holding that Settle was
contributorily negligent as a matter of law, was correct.
Therefore, I incorporate herein the Court's original analysis.
Additionally, in my opinion, Mrs. Settle's own evidence
established that Settle was contributorily negligent as a matter
of law in deciding to cross railroad tracks under circumstances
in which, under her view of the case, neither looking nor
listening could have led Settle to avoid the collision.
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, and
that although other individuals heard the train's horn when it
approached the Route 15 crossing, Settle did not look to his
74
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
discovered it." Norfolk & W. Ry. Co. v. Greenfield, 219 Va.
122, 132, 244 S.E.2d 781, 786-87 (1978). 14 "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
14
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."
75
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
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.
76
The plaintiff's experts in that case 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 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 should 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. 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
77
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
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.
78
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).
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
79
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
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.
80
However, Mrs. Settle's argument itself establishes the
basis for contributory negligence as a matter of law. She
asserts that due to the size and gearing characteristics of
Settle's dump truck and the weight of the load he was hauling,
it was both "dangerous to stop" and "dangerous to go" upon
approaching the Kapp Valley Way crossing. In particular, if
Settle looked to his right upon clearing the lumber stack and
saw an oncoming train, he would not have had sufficient time and
distance to stop his truck even at walking speed. If Settle did
stop prior to crossing the tracks and determined no train was
coming from the west and then proceeded to cross the tracks, he
would not have had sufficient time to avoid a collision with a
train coming from the east, with only 600 feet of track visible
to the east. Therefore, she argues that Settle could not avoid
a collision with an oncoming train regardless of the speed at
which he was driving and regardless whether he looked and saw an
oncoming train.
Mrs. Settle argues that the safest course for Settle was to
approach the crossing slowly without stopping despite the fact
that this course was no safer than stopping before crossing.
The majority concludes that "Settle was forced to rely on his
hearing," a course that was also unsafe due to his diminished
81
ability to hear. 15 This "dangerous to stop" and "dangerous to
go" predicament was known to Settle who, prior to the accident,
made six trips to deliver gravel to the construction site on the
day of the accident alone. With full knowledge of these
conditions – that he would not be able to stop if he saw a train
and would not be able to hear if the train blew its whistle -
Settle chose to proceed into the crossing. In other words, no
precaution was reasonable once Settle made the decision to
cross. 16
Under Mrs. Settle’s view of the evidence, then, the issue
is not whether Settle discharged his duty to look and listen in
such a manner that was effectual because, under Mrs. Settle's
view of the case, looking and listening could never be effectual
considering the presence of the lumber stack, the size of
Settle's truck, the gearing characteristics, the weight of his
15
The fallacy in this reasoning and Mrs. Settle's
contention is that this position assumes Settle was "forced" to
cross the tracks in the first place. Under this rationale,
Settle's only option was to attempt a crossing that was unsafe
regardless of whether he looked or listened and regardless of
whether he approached slowly or stopped. Thus, according to
Mrs. Settle and the majority, Settle's contributory negligence
was a question for the jury since reasonable minds could differ
as to whether approaching the crossing at a slow rate of speed
constituted the exercise of due care. Yet, under Mrs. Settle's
view of the evidence and her argument, even approaching the
crossing at a slow rate of speed was no precaution at all.
16
A Norfolk Southern employee testified that as a result of
the construction traffic, a flagging service could have been
requested at the Kapp Valley Way crossing, but no such request
was received.
82
load, and his diminished ability to hear noises outside his cab.
Rather, the issue is whether reasonable minds could differ on
whether Settle was exercising reasonable care for his own safety
when he chose to cross railroad tracks under circumstances in
which no amount of looking and listening could have avoided a
collision with an oncoming train. As we have stated, "[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." Campbell, 172 Va. at 318, 1 S.E.2d at 258. In my view,
reasonable minds could not differ on the conclusion that Settle
took no precautions for his safety in deciding to cross railroad
tracks under circumstances, established by Mrs. Settle's own
evidence and arguments, in which neither looking nor listening
could have led him to avoid the collision.
83