Southern Railway Co. v. Callis

67 S.E.2d 879, 193 Va. 28, 1951 Va. LEXIS 237
CourtSupreme Court of Virginia
DecidedDecember 3, 1951
DocketRecord No. 3813
StatusPublished
Cited by2 cases

This text of 67 S.E.2d 879 (Southern Railway Co. v. Callis) 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
Southern Railway Co. v. Callis, 67 S.E.2d 879, 193 Va. 28, 1951 Va. LEXIS 237 (Va. 1951).

Opinion

Hudgins, C. J.,

delivered the opinion of the court.

Luther M. Callis instituted this action to recover damages for personal injuries alleged to have resulted from the negligence of the Southern Railway Company. T’he jury returned a verdict for $26,200, on which the trial court entered judgment for plaintiff.

At approximately 9:40 p. m. on February 12, 1948, plaintiff was run over by one or more freight cars pushed by defendant’s Diesel yard engine westwardly from its privately owned right of way into and along Dock street in Richmond, Virginia. He lost both legs, one amputated above and the other below the knee, and sustained other serious and permanent injuries.

The main contention is that the trial court committed reversible error in its refusal to set aside the verdict. A motion to strike the evidence, and later a motion to set aside the verdict, were based on the contention that plaintiff’s evidence did not prove defendant guilty of negligence, and that, even if it did prove such negligence, plaintiff’s own testimony convicted him of contributory negligence.

The scene of the accident was in that part of the industrial and manufacturing area of the city lying east of 15th and south of Cary streets. A rough sketch, not drawn to scale, is filed herewith. Dock street extends west from 28th street to 17th street which it does not cross. A half block south of this intersection Dock street (hereinafter referred to as “lower Dock [30]*30street”) continues from 17th street in a westerly direction under the Seaboard Air Line trestle to 14th street.

Defendant’s railroad track extends from 28th street west on Dock street, crossing 17th street at right angles into. Talbott’s alley. This track then extends along Talbott’s alley approximately 88 feet from 17th street, then turns southwest, and as it leaves the alley, it forms an S curve southwestwardly across defendant’s own land and across another spur track into a switch on lower Dock street, where it merges with a third track extending west from 17th street along the north side of lower Dock street to 14th street. The spur track, which the track extending from Talbott’s alley crosses on defendant’s own right of way, extends from lower Dock street in a northerly direction to a' dead end in Cosby’s junk yard. (See sketch at end of case)

Lower Dock street is 50 feet wide and paved with cobblestones'. There is no walk-way on either side. The south rail of defendant’s track on lower Dock street is approximately 35 feet from the south curb. The pavement between and to the north -of the rails is rough and uneven and, while open to the public, is not generally used at night by either pedestrians or vehicles, certainly not as much as that part of the street which lies between the south rail and south curb.

Defendant has no turning facilities on the three tracks which serve the industrial houses along Dock street, and hence considerable shifting of cars, including pushing them ahead of the engine, is necessary. It was during such shifting of cars that plaintiff was injured.

Plaintiff was the only eyewitness to the accident. He testified that he lived in- York county and was employed by the Virginia Commission of Fisheries. On the night of the accident he went to Richmond to see “Captain Herbert” Presson on business. “Captain Herbert” is engaged in selling oysters and fish, and owns a boat which was tied up at or near the southeast corner of 17th and lower Dock streets. Plaintiff left his automobile with a friend at Bottoms Bridge and went to Richmond in an automobile driven by Mrs. Prunetta Zimmerman. The other passengers in the automobile were Charles Hornsby, plaintiff’s nephew, William Spears and Donald Pridgeon. Mrs. Zimmerman, with her four passengers, arrived at 17th and lower Dock streets a little before 9:00 p. m. There Hornsby and Spears got out of the automobile and, as they started to the [31]*31boat, plaintiff requested them to tell “Captain Herbert” that he would be in to see him in a few minutes. Mrs. Zimmerman drove west from 17th street and parked her automobile a few feet west of two freight cars standing in lower Dock street near the end of the railroad track. Plaintiff remained in the automobile five to ten minutes, after which he got out and Mrs. Zimmerman, with Pridgeon riding with her, drove away.

Plaintiff testified that he desired to urinate and, instead of turning east on Dock street in the direction of “Captain Herbert’s” boat, he turned west and walked along Dock street for a distance of from 180 to 200 feet where he stopped in the “darkest spot,” 19.3 feet east of the Seabord Air Line trestle. He stood between the rails of the track extending into Talbott’s alley facing north, nearer the northern than the southern rail. Before he began to urinate, and during the two or three minutes he said he was urinating, he repeatedly looked and listened for approaching trains and traffic, and saw none. His exact words were: “Well, I just stood facing the north, standing on the cobblestones there. I looked-up the street and looked down the street, nobody was coming. Then I finished up and I started to turn around like that (indicating a turn to the right) and there was the train right on top of me. # # * It was coming out there with such force it was nothing I could do. I had to grab it with that hand. (Indicating his right hand) I couldn’t jump or do anything. ” '

The Diesel switching engine, with a crew of five, left 28th street for the purpose of “picking up” freight cars from the three spur tracks described. Three box cars and three gondolas were “picked up” between 28th and 17th streets. The three gondolas were next to the engine and the three box cars were in the lead. The train stopped at 17th and Dock streets where the conductor, B. J. Whitehead, walked south on 17th street to lower Dock street to ascertain if any freight cars had been emptied or loaded, and was closing the door to one of the two freight cars, standing near the intersection of lower Dock and 17th streets when he was informed of the accident.

The engine, pushing the six cars, left 17th street in a westerly movement through Talbott’s alley. Walter Whetstone, one of the brakeman, was standing on top of the lead box car about 15 feet from the forward end, with an electric light in his hand which enabled him to see 60 to 70 feet in front of the lead car. [32]*32Joseph M. Smith, another brakeman, was on the box car nearest to the engine, with a lighted electric lantern in his hand. As the engine pushed the cars, its 'headlight was burning, though the box cars prevented it from shining on the track in front of the lead car. The engineer and fireman were at their respective places in the cab of the engine. They testified that the automatic signal bell was ringing from the time the train left 17th street until the engineer cut it off after the accident. The cars were pushed approximately 88 feet along Talbott’s alley, thence southwestwardly through the S curve across defendant’s private right of way into the switch which connects the track extending east and west on lower Dock street.

As the box car on which Whetstone was standing approached the Seaboard Air Line trestle, he “crouched,” or “squatted” down in order to pass safely under the trestle. In so doing, he held the electric lantern down by his side. He passed plaintiff without seeing him, got off the car at 15th street, and was signalling the engineer to continue the westward movement of the train across 15th street when Smith discovered plaintiff.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Perrin & Martin, Inc. v. United States
233 F. Supp. 1016 (E.D. Virginia, 1964)
Mann v. NORFOLK AND WESTERN RAILWAY COMPANY
101 S.E.2d 535 (Supreme Court of Virginia, 1958)

Cite This Page — Counsel Stack

Bluebook (online)
67 S.E.2d 879, 193 Va. 28, 1951 Va. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-railway-co-v-callis-va-1951.