Keith, P.,
delivered the opinion of the court.
This suit was brought by Vaughan’s administrator to recover damages from the Southern Railway' Company for the wrongful death of his decedent. -
[700]*700The facts are, that Vaughan was a chauffeur in the employment of the Virginia Transfer Company, and at the time of the accident was taking a female passenger in an automobile to her home in the suburbs of Lynchburg. In undertaking to cross the railroad track at a highway crossing, both Vaughan and his passenger, Mrs. Perrow, were killed by a train of the Southern Railway Company. The occurrence took place on the 2d of May, 1914, at 7:40 P. M. The sun on that day, according to the almanac, sets at two minutes past seven. Considered as upon a demurrer to the evidence, it must be taken as established by the plaintiff that in approaching the crossing no bell was rung, no whistle was sounded and no signal given by any other means of the approaching train. The train was running about twenty-five miles an hour, down grade and drifting. The track as it approached the crossing passed through a very deep cut in which there was a sharp curve at no great distance from the point at which the railroad crossed the highway. The evidence tends to prove that the automobile was moving slowly, and that when it had approached to within five feet of the railroad track it was stopped, as one of the witnesses for the plaintiff testified he supposed, to listen and look out for a train; that in a few seconds it moved on, and just as it got upon the track the train rushed out upon it and killed both the driver and his passenger.
When the evidence had all been adduced, instructions were asked for on behalf of the plaintiff and the defendant, and the case having been submitted to the jury, it brought in a verdict against the defendant for $6,250, upon which judgment was rendered by the court, and the railway company has brought the case here upon a writ of error.
Under the circumstances disclosed the railway company cannot successfully deny that it was guilty of negligence, but it is claimed that Vaughan, the driver of the automobile, was guilty of contributory negligence, and was himself the author of the wrong. In support of this charge the railway company [701]*701insists that the headlight of the engine was in full operation; that it was a light of great power, and its effect is somewhat picturesquely described by counsel for the plaintiff in error as flooding the cut through which the train approached with light, and 'if the defendant in error’s intestate had paid the slightest heed to the situation he could not have failed to be warned of the approaching train.
If the track had been straight, there might be force in this position, but the evidence aided by the photographs taken shows that this crossing was one presenting conditions of unusual difficulty and danger. The view of the traveler was obstructed by a shoulder of the hill through which the cut passed, and, there is a sharp curve in the cut at no great distance from the highway. The light of the headlight of the engine was, of course, projected in a right line to the front, and at the curve would illuminate, not the track, but the wall of the cut; and it is proper to mention here that the counsel for the railway company, as illustrating the power of the light, points out its reflection upon the telegraph poles along the railway line, and that it was sufficiently bright to disclose the number of crossbars upon the poles. But when we consider that the cut was many feet deep, and that the long telegraph poles were upon the top of the cut, it is obvious that the light reflected or shown upon the top of the poles would be a very uncertain evidence of an approaching train to the driver of an automobile at the time under consideration.
As we have seen, a witness for the defendant in error testified that the automobile was stopped at a distance of about five feet from the nearest rail, while two witnesses for the plaintiff in error, the engineer and fireman, testified that the automobile did not stop at a distance of five feet from the rail, but stopped upon the track under conditions which rendered it impossible to avoid the accident. It is earnestly argued on behalf of the plaintiff in error that the testimony of the witness on behalf of the defendant in error is wholly unworthy of belief, as he [702]*702states what was practically impossible; and. that his evidence being disregarded the- testimony of the plaintiff in error establishes the fact that the automobile stopped upon the track and not near it.
The argument against the credibility of Smith, the witness, for the defendant in error rests upon the proposition that his house is shown to be a quarter of a mile distant from the scene of the accident. Smith testified that he was at the time he witnessed the accident at the house of one Brooks, and a photograph is then introduced from which plaintiff in error argues that Brooks’ house, from which the accident was viewed by Smith, is as far from the scene of the accident as Smith’s own house, which he testified is a quarter of a mile distant.
We cannot yield assent to this argument. If the houses of Smith and Brooks and the place of the accident were in the same line of vision, it might be possible to make an accurate estimate of the comparative distances of the two houses from the crossing, but such is not the case, and we would be making a conjecture based upon very uncertain conditions were we to assume, merely from the photograph, that the house of Smith and that of Brooks from which the witness made his observation were of equal distances from the point of the accident. The fact is an important one and could easily have been placed beyond the reach of controversy by having the distances measured. If the distances had been measured, and if it appeared that Smith’s observation was made at a distance of a quarter of a mile, it might well be doubted whether or not it was possible to tell the distance from the track at which the chauffeur stopped the automobile; but taking the facts as they appear, we cannot say that the testimony of Smith was certainly unworthy of belief and should have been disregarded by the jury who saw and heard the witness.
The plaintiff in error contends very earnestly that the automobile which was wrecked was being operated upon the high-, way • without a license, and' that the chauffeur was himself without a license; that the statute law of the State has pre[703]*703scribed in great detail regulations for the operation of automobiles and other vehicles whose motive power is other than animal power on the public highways of this State; and that the statute declares that it shall be unlawful for any person to operate any automobile, or other vehicle drawn and propelled by any power except animal power, on any public highway of the State, except and until such person shall comply with the provisions of the statute.- In support of this view two cases from the Supreme Court of Massachusetts are cited, one of them Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, L. R. A. 1915e, 264, 127 Am. St. Rep. 513, and Dudley v. Northampton Street Ry. Co., 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561.
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Keith, P.,
delivered the opinion of the court.
This suit was brought by Vaughan’s administrator to recover damages from the Southern Railway' Company for the wrongful death of his decedent. -
[700]*700The facts are, that Vaughan was a chauffeur in the employment of the Virginia Transfer Company, and at the time of the accident was taking a female passenger in an automobile to her home in the suburbs of Lynchburg. In undertaking to cross the railroad track at a highway crossing, both Vaughan and his passenger, Mrs. Perrow, were killed by a train of the Southern Railway Company. The occurrence took place on the 2d of May, 1914, at 7:40 P. M. The sun on that day, according to the almanac, sets at two minutes past seven. Considered as upon a demurrer to the evidence, it must be taken as established by the plaintiff that in approaching the crossing no bell was rung, no whistle was sounded and no signal given by any other means of the approaching train. The train was running about twenty-five miles an hour, down grade and drifting. The track as it approached the crossing passed through a very deep cut in which there was a sharp curve at no great distance from the point at which the railroad crossed the highway. The evidence tends to prove that the automobile was moving slowly, and that when it had approached to within five feet of the railroad track it was stopped, as one of the witnesses for the plaintiff testified he supposed, to listen and look out for a train; that in a few seconds it moved on, and just as it got upon the track the train rushed out upon it and killed both the driver and his passenger.
When the evidence had all been adduced, instructions were asked for on behalf of the plaintiff and the defendant, and the case having been submitted to the jury, it brought in a verdict against the defendant for $6,250, upon which judgment was rendered by the court, and the railway company has brought the case here upon a writ of error.
Under the circumstances disclosed the railway company cannot successfully deny that it was guilty of negligence, but it is claimed that Vaughan, the driver of the automobile, was guilty of contributory negligence, and was himself the author of the wrong. In support of this charge the railway company [701]*701insists that the headlight of the engine was in full operation; that it was a light of great power, and its effect is somewhat picturesquely described by counsel for the plaintiff in error as flooding the cut through which the train approached with light, and 'if the defendant in error’s intestate had paid the slightest heed to the situation he could not have failed to be warned of the approaching train.
If the track had been straight, there might be force in this position, but the evidence aided by the photographs taken shows that this crossing was one presenting conditions of unusual difficulty and danger. The view of the traveler was obstructed by a shoulder of the hill through which the cut passed, and, there is a sharp curve in the cut at no great distance from the highway. The light of the headlight of the engine was, of course, projected in a right line to the front, and at the curve would illuminate, not the track, but the wall of the cut; and it is proper to mention here that the counsel for the railway company, as illustrating the power of the light, points out its reflection upon the telegraph poles along the railway line, and that it was sufficiently bright to disclose the number of crossbars upon the poles. But when we consider that the cut was many feet deep, and that the long telegraph poles were upon the top of the cut, it is obvious that the light reflected or shown upon the top of the poles would be a very uncertain evidence of an approaching train to the driver of an automobile at the time under consideration.
As we have seen, a witness for the defendant in error testified that the automobile was stopped at a distance of about five feet from the nearest rail, while two witnesses for the plaintiff in error, the engineer and fireman, testified that the automobile did not stop at a distance of five feet from the rail, but stopped upon the track under conditions which rendered it impossible to avoid the accident. It is earnestly argued on behalf of the plaintiff in error that the testimony of the witness on behalf of the defendant in error is wholly unworthy of belief, as he [702]*702states what was practically impossible; and. that his evidence being disregarded the- testimony of the plaintiff in error establishes the fact that the automobile stopped upon the track and not near it.
The argument against the credibility of Smith, the witness, for the defendant in error rests upon the proposition that his house is shown to be a quarter of a mile distant from the scene of the accident. Smith testified that he was at the time he witnessed the accident at the house of one Brooks, and a photograph is then introduced from which plaintiff in error argues that Brooks’ house, from which the accident was viewed by Smith, is as far from the scene of the accident as Smith’s own house, which he testified is a quarter of a mile distant.
We cannot yield assent to this argument. If the houses of Smith and Brooks and the place of the accident were in the same line of vision, it might be possible to make an accurate estimate of the comparative distances of the two houses from the crossing, but such is not the case, and we would be making a conjecture based upon very uncertain conditions were we to assume, merely from the photograph, that the house of Smith and that of Brooks from which the witness made his observation were of equal distances from the point of the accident. The fact is an important one and could easily have been placed beyond the reach of controversy by having the distances measured. If the distances had been measured, and if it appeared that Smith’s observation was made at a distance of a quarter of a mile, it might well be doubted whether or not it was possible to tell the distance from the track at which the chauffeur stopped the automobile; but taking the facts as they appear, we cannot say that the testimony of Smith was certainly unworthy of belief and should have been disregarded by the jury who saw and heard the witness.
The plaintiff in error contends very earnestly that the automobile which was wrecked was being operated upon the high-, way • without a license, and' that the chauffeur was himself without a license; that the statute law of the State has pre[703]*703scribed in great detail regulations for the operation of automobiles and other vehicles whose motive power is other than animal power on the public highways of this State; and that the statute declares that it shall be unlawful for any person to operate any automobile, or other vehicle drawn and propelled by any power except animal power, on any public highway of the State, except and until such person shall comply with the provisions of the statute.- In support of this view two cases from the Supreme Court of Massachusetts are cited, one of them Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, L. R. A. 1915e, 264, 127 Am. St. Rep. 513, and Dudley v. Northampton Street Ry. Co., 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561.
While we recognize the dangers incident to the operation of automobiles on account of the great speed and power with which they are propelled, and that it is the duty of the legislature and of the courts, as was said by the Supreme Court of Massachusetts, “to consider the risks that arise from the use of new inventions applying the forces of nature in previously unknown ways,” we could not go as far as the Massachusetts court in the cases cited without overruling well-considered cases in this and other courts dealing with kindred questions.
In quite a recent case, Southern Railway Co. v. Rice, 115 Va. 235, 78 S. E. 592, Judge Buchanan, speaking for the whole court in a carefully considered opinion, said that “An engine-man of a railway company cannot recover damages from his employer for injuries suffered while running his engine within the limits of a city at a higher rate of speed than that fixed by the ordinance, if such negligence proximately contributed to the injury, and it is immaterial that the company knew that the ordinance was regularly violated by its employees. The negligence in such case is negligence as a matter of law, and it would be contrary to public policy to relieve the engineman of the effect of his violation of law upon the ground that the company and its employees were in the habit of violating the particular law.”
[704]*704The text writers and adjudicated cases touching upon the subject were very carefully considered in that case and the following quotations from the citations in that opinion will very clearly show the attitude of this court upon the subject in question:
“The text-books seem to be agreed that the general rule is that if the person injured was at the time he received the injury doing some act in violation of a statute or ordinance, he' cannot recover, if such violation contributed to his injury.
“Shearman & Redfield, in their work on Negligence, vol. 1, sec. 104 (5th Ed.), lay it down as the general rule that 'if the plaintiff is acting in violation of a statute or ordinance at the time the accident occurred, and such violation proximately contributes to his injury, he is guilty of contributory negligence. But if such violation does not contribute to the injury, it is no defense.’
“Labatt on Master and Servant, sec. 362, says: 'There can be no question that where a servant’s injury was proximately caused by the fact that he was violating a statutory or municipal ordinance the meáning and effect of which are perfectly clear, he cannot recover damages.’
“In Cooley on Torts (3d Ed.), vol. 1, pp. 273-4, it is said that the fact that a party injured was at the time violating the law does not put him out of the protection of the law—he is never put by the law at the mercy of others. If he is negligently injured on the highway, he may have redress, notwithstanding at the time he was upon the wrong side of the road, provided that act did not contribute to his injury.”
See note upon this subject, Va. Law Review, December, 1915, p. 238, and cases there cited.
We think it plain in this case that there was no sort of causal relation between the violation of the statute and the wrong for which the suit was brought. The want of a license for the automobile or for the chauffeur could not by any possibility have contributed proximately to the happening of this most unfortunate occurrence.
[705]*705It is insisted on behalf of the plaintiff in error that inasmuch as Vaughan was a carrier of passengers, he should be held to the very highest degree of care. This would be true as between the chauffeur and his passenger, but is not the measure of duty as between the chauffeur of the automobile and the railway company, as to which he only owed the duty of exercising reasonable care for his own protection.
The case of Washington & Mt. Vernon Ry. Co. v. Trimyer, 110 Va. 856, 67 S. E. 531, relied upon by plaintiff in error in support of its contention, was a suit brought by a passenger, who was entitled to require that the railway company should exercise the utmost care and diligence of a cautious person to protect him from injury.
What we have said sufficiently indicates our views upon the law and the facts of this case. We think the jury were fully and fairly instructed upon the law, and that the facts are sufficient to support their verdict. Upon the whole case, we are of opinion that the judgment should be affirmed.
Affirmed.