Wilmouth's Adm'r v. Southern Railway Co.

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The turning points of the case before us lie within a very narrow compass, and, under the rules on the subject, too firmly established to be changed except by statute, the contributory negligence of the plaintiff’s intestate was the proximate cause of his death and bars any recovery by the plaintiff. And there is no statute in force with us, State or Federal, which changes such common law rule as it affects others than employees of a railroad company.

[1] It is true that in accordance with the evidence as we must regard it on demurrer, the defendant railway company was guilty of culpable negligence in running the train which killed the plaintiffs intestate at the high rate of speed, in excess of the speed limit allowed by the city ordinance, and without warning, over the highway crossing used by large numbers of persons. So. Ry. Co. v. Abee’s Adm’r, 124 Va. 379, 98 S. E. 31; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; N. & W. Ry. Co. v. Holmes, 109 Va. 407, 64 S. E. 46; N. & W. Ry. Co. v. Munsell, 109 Va. 417, 64 S. E. 50; Danskin v. Penn. R. Co., 76 N. J. Law, 660, 72 Atl. 32, 22 L. R. A. (N. S.) 232, 237-8, and note; Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403.

[2] But the case involves a traveler over a highway crossing passing in front of a moving steam railway train, and a traveler on foot, under circumstances, which are set forth in the statement preceding this opinion, under which, as is wejl settled by the authorities, it was his duty to look and listen before going upon the railway track and to use reasonable care to do this at a point where such action might have been reasonably effective. Springs v. Va. Ry. & P. Co., 117 Va. 826, 86 S. E. 65; Wash., etc., Ry. Co. v. Lacey, 94 Va. 460, 26 S. E. 834; So. Ry. v. Jones, 106 Va. 412, 56 S. E. 155; U. S. Spruce Lumber Co. v. Shumate, 118 Va. 471, 87 S. E. 723; Wash., etc., Ry. Co. v. Zell’s Adm’r, 118 Va. 755, 88 S. E. 309.

[3] It is apparent from the facts of this case, set forth above, that the plaintiff’s intestate disregarded the duty just mentioned and that, while in possession of his faculties of sight and hearing, without any need of haste or excuse for his conduct other than carelessness, on a bright, clear day, stepped upon a railway track in front of a rapidly approaching passenger train when its engine was almost immediately upon him. By stopping at any point within a space of eight feet of the track and looking in the direction from which the train on that track was to be expected, as was well known to him, or by looking in that direction as he walked, without stopping, the plaintiff’s intestate could not have failed to have seen that the train was approaching and that it was almost upon him. He was on foot. There was nothing to have prevented his the.reupon stopping and awaiting the passing of the passenger train before attempting to. proceed. It is not a case where a train is so far away when the crossing is attempted that a reasonably prudent traveler would have made the attempt relying, if the train could not be seen on its being looked for, upon its giving proper warnings of its approach, or, if seen and it was not apparently moving excessively fast, relying upon the train not exceeding its lawful speed. In the instant case the train was so close at hand when the crossing in front of it was attempted that its visible presence superseded the need of any other warning to all travelers upon the highway in the reasonable exercise of their faculties of sight, if not of hearing. The preceding negligence of the defendant railroad company aforesaid was therefore immaterial. And the conduct of the plaintiff’s intestate in stepping upon the track in front of such visible danger, almost immediately upon him, must, under all of the authorities, be regarded as negligence per se, which was the proximate cause of his death. Thompson on Neg., sections 1666, 1667, 1672.

[4] There are exceptions to the general rule of negligence per se just referred to, which exist, as stated by the authorities, “when the circumstances are so unusual that .the injured party could not reasonably have expected the approach of the train at the time he went upon the track.” Scott v. St. Louis, etc., R. Co., 79 Ark. 137, 95 S. W. 490, 116 Am. St. Rep. 67, 9 Am. & Eng. Anno. Cas. 212, 214, and note pp. 216-17. When such circumstances exist, the failure to look is not regarded as contributory negligence per se, arid the case is held to be one for the jury on that issue. But in the case before us there was- an entire absence of any such unusual circumstances. The crossing and its environment were all well known to the plaintiff’s intestate. The passenger train was due and was to be expected at the' time from the direction from which it came. The mere circumstances that a freight train was shortly previous thereto passing on the adjacent track was not unusual and was in no way calculated to induce the belief that the passenger train would not come in as usual on its separate track. There was nothing to throw the plaintiff’s intestate off his guard save his negligent inattention to his surroundings.

In both of the cases of Hubbard v. Boston, etc., R. Co., 162 Mass. 132, 38 N. E. 366, and N. Y. S., etc., R. Co. v. Moore, 105 Fed. 725, 45 C. C. A. 21, especially urged upon our attention in argument for the plaintiff the traveler over the highway crossing of the railroad was driving and the obstruction to the view was such that the horse or horses would have had to have been driven practically upon the track before the driver could have stopped and, without alighting, could have looked along the track for any reasonable distance. In view of the fright of the animals that would have resulted from an approaching train, this situation rendered the “stop, look and listen” rule inapplicable in such cases.

To the same effect are the United States Supreme Court cases above cited, also relied on by the plaintiff. (144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; and 95 U. S. 161, 24 L. Ed. 403). '

To the same effect also are the following Virginia cases cited and relied on by the plaintiff. So. Ry. Co. v. Bryant, 95 Va. 212, 28 S. E. 183; Higgins v. So. Ry. Co., 116 Va. 890, 83 S. E. 380.

As to the other Virginia cases cited and relied on by plaintiff, namely, those of Southern Ry. Co. v. Abee’s Adm’r, supra, 124 Va. 379, 98 S. E. 31; N. & W. Ry. Co. v. Holmes, supra, 109 Va. 407, 64 S. E. 46; and N. & W. Ry. Co. v. Munsell, supra, 109 Va. 417, 64 S. E. 50, which involve travelers on foot and which hold that the traveler was not guilty of contributory negligence in going on the crossing in front of a steam railroad train near by: They are all cases where the accident occurred in the night-time and in other respects differ from the case before us. In the instant case the danger was imminent and apparent to a traveler at all alert to the perils of his position and making reasonable use of his faculty of sight, whereas in the cases just mentioned the situation was otherwise.

The case of Danskin v. Penn. R. Co., supra, 76 N. J. Law, 660, 72 Atl. 32, 22 L. R. A. (N. S.) 232, and the note thereto, involve the consideration of when it is negligence for a railroad company not to have gates or a watchman at a crossing. The declaration in the instant case does not allege such negligence as the proximate cause of the accident, although it does allege the absence of a watchman at the crossing in question as a circumstance which enhanced the degree of care the railway company should have exercised as to the speed of its passenger train and as to giving signals. ■ But the railway company may be regarded as culpably negligent in these matters and yet that did not excuse the' conduct of the plaintiff’s intestate aforesaid under the circumstances which surrounded him.

[5] It is urged, however, in argument for the plaintiff that the fact that the plaintiff’s intestate was struck by the far side of the engine and thrown to the opposite side of the track over which he was crossing when struck by the train shows that he had almost succeeded in crossing before it arrived and that if the train had not been moving at an unlawful rate of speed he would have escaped, and, hence, the rate of speed is predicated as the proximate cause of the accident. The evidence discloses, however, that the manner in which the plaintiff’s intestate sprang in his effort to escape when he saw the train almost upon-him caused him to be struck by the far side of the engine and thrown, as aforesaid. And although it may be true that if the train had been moving only at a lawful speed the plaintiff’s intestate might have crossed the track before he was struck, yet under the facts of this case that would have been but a chance happening. Neither the speed of the train as it appeared to the plaintiff’s intestate nor the expectation by him that it would be within the lawful speed in fact induced him to attempt the crossing in front of it. He attempted the crossing in culpable ignorance of the proximity of the train. A supposed speed of the train was not a causa causans — it was not a “causing cause” — in the instant case; which character of cause alone is a proximate cause as known to the law. It can no more be regarded as the proximate cause of the failure of the plaintiff’s intestate to clear the track in advance of the train than was the time and the speed of his own movement. If he had started across immediately behind the passing .freight train and had run rapidly, instead cf walking, he would doubtless have crossed the northbound track ahead of the passenger train. That conduct of omission may be as well said to have been the proximate cause of the accident as the speed of the passenger train. Neither can be said to have been such proximate cause in contemplation of law. The order of sequence of events does not furnish a reliable test of a proximate cause. The act which is nearest in point of time may net be the nearest in the line of causation.

There was in truth, in contemplation of law, an intervening cause in the instant case between the negligent speed of the passenger train and the accident, and that was the contributory negligence of the plaintiff’s intestate aforesaid. And the law regards such an intervening act as the proximate cause of an injury suffered by the actor. 1 Thompson on Neg., sec. 64. If the act which constituted such negligence had been such that under the circumstances it was such as a reasonably prudent person would have committed, and hence ought not to have been imputed to the plaintiff’s intestate as a fault, then indeed such act would not be regarded as an intervening proximate cause, because it would have been such an act as the railroad company might reasonably have foreseen as likely to have occurred or as reasonably possible of occurrence under the circumstances without fault of the actor, and hence the injurious result, or some injurious result such as did happen, might have been reasonably foreseen by the railroad company as likely to occur, or as reasonably possible of occurrence, without fault of any other person, from its own wrongful act in running its train in an unlawful speed. And such foreseeable nature of the result, when regarded in such a light as that just mentioned, is, after all, the most reliable and perhaps the only practical test which the finite mind can apply to the solution of that most difficult of legal questions— what is the proximate cause of a given result. 1 Thompson on Neg., sections 48-49. But one is not required by the law to anticipate and foresee that another will be guilty of contributory negligence; nor is there any duty imposed by law upon any one to foresee and guard another against the results of such negligence of his own until after such negligence occurs and the position of the negligent person became known or would become known if a reasonable lookout were kept. Then, indeed, but not until then, the humane doctrine of the last clear chance becomes applicable in favor of the negligent person. And in the instant case the law did not require that the railroad company should foresee and anticipate that a traveler over the crossing, such as the plaintiff’s intestate, with a clear, eight-foot space before reaching the danger zone of the track, in which he could by the exercise of ordinary care look for approaching trains before putting himself in danger, would go upon the track, as he did, almost immediately in front of the train without looking in that direction. On the other hand, we must consider that the plaintiff’s intestate should have foreseen that the accident which occurred was likely to result, or was reasonably possible of occurrence, from just such conduct as that of which he was guilty under the circumstances which surrounded him. Hence, we cannot escape the conclusion that it was not the excessive speed of the train, but the contributory negligence of the plaintiff's intestate, which was the proximate cause of the accident.

[6] The case before us does-not admit of the application of the last clear chance doctrine upon the testimony of any of the witnesses for plaintiff or upon any evidence in the case. It is urged for plaintiff that if the plaintiff’s intestate, from the place in which he stood just west of the southbound track, after the rear of the freight train passed him, could have seen along the northbound track for 1,211 feet and could then have seen the passenger train approaching for that distance, it follows that the fireman or engineman on the passenger-train engine could and, in the exercise of reasonable lookout, should have seen the plaintiff’s intestate standing there, and his jeopardy as he moved and walked in evident unconsciousness of his peril toward the northbound track, and that the airbrakes should and could have been applied in the exercise of reasonable diligence so as to have stopped the passenger train before its engine reached the crossing. But this argument rests upon the assumption that the passenger train was a sufficient distance away when the view of the plaintiff’s intestate of and from it was freed from obstruction by the receding freight train to allow such airbrake application to be performed with the result mentioned. Such assumption, as we have seen, finds no support in the evidence. That evidence, even for the plaintiff, all concurs in establishing the fact, set forth in the statement of facts aforesaid preceding this opinion, that when such clearance of view occurred, the engine of the passenger train was too close to the crossing for it to have stopped by any physical possibility before it reached the crossing.

For the foregoing reasons we find no error in the action of the trial court in sustaining the demurrer to the evidence and the judgment under review must be affirmed.

Affirmed.

Burks, J., concurs: in the result.