Director General of Railroads v. Blue

Sims, J., after making the foregoing statement, delivered the following opinion of the court: [1, 2] In the view we take of the case the defendant was guilty of primary negligence in running the engine [373] at a speed in excess of the lawful speed limit, and in failing to ring the bell as the engine approached the crossing, as required by the ordinances of the city; and the plaintiff was guilty of negligence in failing to observe the approach of the engine before he went upon the track where he was struck and injured. That leaves for our sole consideration the following question: 1. Is the last clear chance doctrine applicable to the case? This question must be answered in the affirmative. [3, 4] This case is ruled by the holding and principle laid down in Gunter v. So. Ry. Co., 126 Va. 565, on page 595, 101 S. E. 885, on page 894. The following is there said, on page 595: “ * * whatever may have been the prior holdings, we are of opinion that when the engineman or other person in charge of a moving engine or ear sees a person in apparent possession of his faculties on the track, or so near thereto, that he will probably be injured or killed unless he changes his position, he has the right to assume that he will change his position in time for his own safety until the approach is so close that an engineman of ordinary care and prudence would be admonished of his peril, and if he then gives no evidence of consciousness of his peril it is the duty of such engine-man or person in charge to give timely and suitable warning of the approach of such engine or car, and if the warning appears to be unheeded to use all other means within his power, consistent with his highest duty to other persons, to avoid injury to one who has thus exposed himself. The failure to exercise this degree of care is negligence for which the master is liable.” (Italics supplied.) Indeed the instant case is stronger for the plaintiff than the Gurier Case, in that in the present ease there was the obvious failure to notice the signal of the whistling of the lookout man through his teeth, as a super374 added fact showing the obvious unconsciousness of the plaintiff of his peril, in addition to the other super-added facts, stated above, showing such unconsciousness. And we are of opinion that upon the facts of the instant case, before it was absolutely certain that the plaintiff would be struck, when the plaintiff was yet a few steps away from the danger zone — i. e., from the line of the overhang of the engine — it was obvious to the lookout man on the engine that the plaintiff had not heard the noise of the engine or of the whistling through the teeth signal, and that the engine was then so close that the lookout man, if he had exercised ordinary care and prudence, would have been admonished that the plaintiff was, under the circumstances, obviously in grave peril; that thereupon, the plaintiff having given no evidence of consciousness of his peril, it was the plain duty of the lookout man to have notified the engineman of such peril, so that a louder alarm, by whistle blast or tap of the bell, might have been given, and if that had been unheeded, that the engine might have been stopped or its speed slackened; that the engine was then amply far enough away for all of these things to have been done by the exercise of reasonable diligence; and that the engine was moving so slowly that if any of them had been done the preponderance of the evidence is that the plaintiff would not have been injured. We are therefore of opinion that the case must be affirmed. Affirmed.