Norfolk & Western Railway Co. v. Wright

229 S.E.2d 890, 217 Va. 515, 1976 Va. LEXIS 314
CourtSupreme Court of Virginia
DecidedNovember 24, 1976
DocketRecord No. 751275
StatusPublished
Cited by3 cases

This text of 229 S.E.2d 890 (Norfolk & Western Railway Co. v. Wright) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norfolk & Western Railway Co. v. Wright, 229 S.E.2d 890, 217 Va. 515, 1976 Va. LEXIS 314 (Va. 1976).

Opinions

Poff, J.,

delivered the opinion of the court.

Defendant, Norfolk and Western Railway Company, appeals from a final order confirming a jury verdict awarding plaintiff, Ronald L. Wright, $42,500 in damages on account of personal injuries sustained in a train-automobile collision. Defendant assigns error to the trial court’s action overruling its two motions to strike plaintiff’s evidence and its motion to set aside the verdict.

[516]*516At approximately 3:15 a.m. on March 11, 1972, plaintiff was a passenger on the right front seat of a station wagon operated by Joseph Calvin Meador, Sr. Meador, plaintiff, and three other occupants of the vehicle had spent several hours together visiting four restaurants in the Roanoke area. Meador was driving south on Ninth Street in Roanoke, approaching the point the street crosses five railroad tracks running east and west. On the north side of the crossing was an automatic signal gate painted with red and white stripes and equipped with three red lights designed to flash on and off when the gate was lowered across Ninth Street. Two additional flashing red lights and a bell were mounted on the post supporting the gate. The post also supported three signs, one (a conventional cross-buck) reading “Railroad Crossing”, another reading “5 Tracks”, and the third reading “Stop on Red Signal”.

Plaintiff testified that when the station wagon arrived at the crossing, the gate was down and the red lights were flashing. One of the passengers “said something about racing the train”. Meador “come on up to the gate and slowed down like he was going to stop” but “just kind of eased out.” Plaintiff warned Meador not to “go around that gate”, and when “he just kept on easing out” he told Meador “if you’re going to go across that track, you jnake sure there isn’t nothing coming.” Meador maintained a constant speed of “maybe five miles an hour, just walking speed.” Looking first to his right, plaintiff “never saw the train or the light or heard [a] whistle or . .. bells ringing on the train.” When he looked back to his left “the train was coming . into the side of the car.”

The evidence showed that Meador crossed three tracks before reaching the fourth track along which the westbound train was proceeding. The train struck the station wagon “just front of the [left] front door”, and the point of impact was 75 feet south of the barricade. The weather was clear and the temperature was 26 degrees. Meador was killed in the collision. A postmortem blood analysis showed an alcohol weight content of 0.13 percent. A toxicologist testifed that when this quantity is present:

“a person’s reflexes are slowed, a person’s judgment is impaired, coordination and fine test is impaired. And a symptom known as nystagmus, which is a tendency for the eyes not to focus for periods of time varying from seconds to [517]*517longer than that — perhaps, as long as five or six seconds — is also seen.”

Christopher Firebaugh, a motorist who stopped his car at the gate behind Meador’s station wagon, testified that the gate was down and the lights were flashing; that he saw the headlight of the approaching train; that Meador was traveling “just three-five miles an hour” as. he drove around the gate; and that while he had not heard a bell or train whistle, “it was cold that night, and the windows were up, and I had a tape player going.”

The testimony of the engineer, S. J. Daniel, concerning physical-facts was not contradicted. The train approached the crossing at a constant speed of 10 m.p.h. The headlight had been recently cleaned and was burning brightly, and the engine’s bell, which had been actuated 500 to 600 feet east of the crossing, rang continuously until after the collision. When the train was 100 to 110 feet from the crossing, Daniel saw the station wagon just inside the gate and approximately 50 feet from the westbound track. Daniel did not blow the whistle and did not apply the emergency brakes until “the last second.” “[A]s far as I was concerned,” he said, “there was no emergency until the last second.” Daniel thought Meador was going to stop because he was traveling so slowly, “[j]ust like somebody going to roll up to a stop sign and stop.”

At trial, Daniel testified: “I don’t think anything I could have done would have stopped that train and prevented that accident.” Impeaching that testimony, plaintiff showed that, on discovery deposition, Daniel had stated: “Had I known he wasn’t going to stop, I could have stopped.” Admitting that statement, Daniel said that he had later returned to the scene of the accident and “given it more thought”. Reaffirming his trial testimony, Daniel explained that when the emergency brakes are applied “it takes nine seconds for the full brake application to reach throughout the train.”

Frank Clifford Miller, a certified professional engineer, testified that, at a rate of 10 m.p.h., an object will travel 14.7 feet per second or approximately 132 feet in nine seconds. Miller discussed the design and function of the emergency braking system and the purpose and effect of the nine-second time lag. On brief, defendant interprets Miller’s testimony to mean that, after application of the emergency brakes, “the brakes would not have begun to slow the train for nine seconds”. Plaintiff, on the [518]*518other hand, reads Milíer’s testimony to mean that “there must be some braking effect prior to the elapse of the full nine seconds”, and that “the train could have been slowed prior to impact.” As transcribed, Miller’s testimony is unclear. For purposes of this opinion, we accept plaintiff’s interpretation.

The central issue is whether the evidence was sufficient to prove primary negligence and causal connection. In support of the trial court’s rulings, plaintiff argues that the evidence showed, first, that defendant’s agent Daniel was guilty of negligence in failing to blow the whistle and in delaying application of the brakes and, second, that such negligence proximately contributed to the collision and plaintiff’s injuries.

Defendant argues that Daniel’s conduct was not negligent because he was entitled to rely upon the presumption “[t]hat a person approaching a railroad crossing will stop and not go upon the railroad track immediately in front of a moving engine in plain view. ..Southern Railway Co. v. Daves, 108 Va. 378, 384, 61 S.E. 748, 749 (1908). This presumption, defendant says, prevails even when plaintiff is observed inside a lowered .crossing gate, Norfolk & W. R. Co. v. Sink, 118 Va. 439, 87 S.E. 740 (1916), or running rapidly toward the crossing, Nichols v. Southern Ry. Co., 187 Va. 89, 45 S.E.2d 913 (1948), and is reinforced when, as here, plaintiff is observed approaching the crossing slowly, Washington, Etc., Ry. v. Thompson, 136 Va. 597, 118 S.E. 76 (1923).

Plaintiff responds that the presumption is not absolute; that it survives only in the absence of “superadded circumstances sufficient to charge an ordinarily prudent man with a sense of danger”, Director General v. Blue, 134 Va. 366, 380 (rehearing), 109 S.E. 482 (1921), 114 S.E. 557, 559 (1922); and that once Daniel saw that Meador had disregarded the auditory, visual, and written warnings, violated the barricade, and continued at a constant speed toward the westbound track, Daniel was charged “with a sense of danger” and, at that point, lost the right to rely upon the presumption.

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229 S.E.2d 890, 217 Va. 515, 1976 Va. LEXIS 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norfolk-western-railway-co-v-wright-va-1976.