Virginia Electric & Power Co. v. Ford

Campbell, C. J.,* delivered the opinion of the court. This writ of error brings under review a judgment obtained by defendant in error against the plaintiff in error. The basis of the action is the alleged negligence of the defendant which resulted in the death of plaintiff’s intestate. The facts displayed by the record are as follows: Between Richmond and Petersburg runs an interurban electric railway over which trolley cars are operated. From Richmond south for some distance the car track runs between two paved concrete highways. That to the west carries southbound traffic, that to the east northbound. These paved highways are each eighteen feet wide, and are thirty-four feet apart. From the eastern — 623 — edge of the western driveway to the west rail of the street car track is thirteen and eight-tenths feet. The track itself is four and seven-tenths feet wide, and from the eastern rail of the car track to the western edge of the eastern highway is sixteen and six-tenths feet. On each side of the car track is a shallow depression or drain. The track itself is somewhat higher than the paved road. An engineer whose plat is in evidence said that it was from four to six inches higher. Another witness puts it at two feet. For the purposes of this case we will deal with these roadways and this track as being straight for an indefinite distance and practically level, although there is a slight grade to the south at; the point of collision. South of Richmond’s corporate limits there is a modern suburban development, streets and alleys are laid out, among them Converse street. In this territory Ford operated a dairy truck for the Zeller Dairy Company. He solicited business, sold and delivered milk, made collections, and was therefore intimately familiar with roads there, with traffic conditions and with this electric line and the manner in which its cars ran. Petersburg and Richmond are about twenty-two miles apart. These electric cars were scheduled to make this trip in fifty-eight minutes and served fifty-six stops, although there were no pauses at them unless passengers were to be taken on or let off. In other words, these electric cars in order to keep this schedule must move rapidly, all of which Ford knew. On the morning of February 27, 1933, he, driving his milk truck and accompanied by a co-employee, Driscoll, came down the west road, made a wide turn and started across the car track at Converse street. As he started to cross, and from then on, his truck was practically at right angles with the car track. He sat in the driver’s seat, which was on the left side. Ry his seat was an ordinary truck door with its window down. That is to say, he sat on the side' from which the electric car was coming, with an unobstructed view. — 624 — This truck is eighteen feet long. As the turn was made it was shifted into low gear, which, under ordinary conditions, gave it a speed of from three to five miles an hour. Mr. Zeller said there was still a lower gear; “the lowest gear is never used unless they have two or three tons on them on heavy duty work.” Mr. Driscoll, who as we have seen, was in the truck and therefore an eye witness, said that it “might have been going as much as ten; maybe six. It is hard to tell.” Again he said that it “was inching along, trying to look for an opening to get across.” Mr. J. B. Bradshaw, another witness for the plaintiff, and the only other eye witness, said: “Well, he came upon the track real slow. It is a little rise there on that crossing and he was heavily loaded, I reckon, with milk bottles and crates, and came upon the driveway slow and he pulled off on the side of the tracks so that his front wheels were off the tracks and his rear part of his truck was on the track and he hesitated there, stopped there.” , Mr. Driscoll tells us why Ford was “inching along.” There were several cars coming up from the south, “one trying to pass another at a rapid rate of speed there, running abreast along there.” This situation made it necessary for Ford either to drive slowly or stop, otherwise he might have run into one of these northbound cars. Driscoll said that when they made the turn and straightened out for the Converse street crossing, he and Ford both looked to the north and saw the trolley car approaching about 670 feet away. When they looked again it was near the next street to the north, which street was 335 feet away, and when they looked for the third time the car was about fifty feet away and approaching at undiminished speed. The evidence of the plaintiff is that it was running between forty and forty-five miles an hour, which was in excess of scheduled speed, but that speed, as we have seen, was high at all times between stations. Ford knew that the car was coming and he knew that the way ahead was blocked, and yet he continued in his seat until — 625 — his truck was struck and he was killed. Driscoll said that before the impact, the truck’s front wheels had about reached the concrete on the north road. If that he true, all but about a foot and a half of the truck’s body had cleared the car track, but photographs in evidence make it fairly plain that the trolley car struck the truck just to the rear of the driver’s seat. It then ran on about twenty or twenty-five steps, taking the’truck with it. Zeller, who went to salvage the truck, said that “the rear part of the truck and the rear left wheel was under the car,” and again, “the street car was resting on top of the truck and pushing the truck and hub down against the rail.” These physical facts show that the body of the truck at the moment of impact stood practically squarely across the car track. It also appears from plaintiff’s evidence that there was sand on the track for thirty feet north of the crossing, which appeared to have been “burnt” by locked and skidding wheels. There was a special jury and a verdict for the plaintiff which was carried into a judgment of confirmation by the trial court. The effect of this we have considered in many cases. We must accept the conclusions reached in the trial court, unless they are plainly wrong or without evidence to support them. If they are plainly wrong, then plainly they should not be accepted. The duty which rests upon us is no less imperative in one case than in the other. In this connection it should he remembered that even on a demurrer to evidence we look to the entire testimony of the witness and not to some isolated statement. If this were not true, a plaintiff might recover on testimony in chief, although on cross-examination he admitted that he was in error. The negligence of the defendant for the purpose of this opinion must be assumed. This brings us back to Ford and to what he saw and did. It is not negligence as a matter of law to undertake to cross a track in front of an oncoming car then 670 feet away. To make it so, there — 626 — must be some super-added fact or facts. Ford knew the manner in which these interurban cars operated and must have had a fairly accurate knowledge of their schedule or of the manner in which they ran. As he started across the track he saw, or should have seen, that the crossing would in all probability be blocked by approaching cars going north on the other side, and that he would either have to stop or “inch along” to avoid them. Plainly, in such circumstances it was negligence for him to go onto the car track. It is true, as contended, that men confronted by sudden emergencies are not required to follow the safest course. The doctrine of error in extremis is a humane one and has been frequently applied by this court, but it cannot be invoked by one who is at fault and whose negligence or misconduct brings about the peril in which he is placed. . In Virginia & S. W. R. Co. v. Hill, 119 Va. 837, 89 S. E. 895, 896, the court said: “Plaintiff, moreover, invokes the doctrine of ‘error in extremis’ to escape the effect of his own negligence, but that principle does not apply to a self-imposed emergency. The doctrine pre-supposes that the party who invokes it is himself free from fault in creating the emergency.” Real Estate, etc., Ins. Co. v. Gwyn’s Adm’x, 113 Va. 337, 74 S. E. 208; Lavenstein v. Maile, 146 Va. 789, 132 S. E. 844; Safety Motor Transit Corp. v. Cunningham, 161 Va. 356, 171 S. E. 432. When Ford started across this railway track he saw, or should have seen that progress might be stayed by oncoming northbound traffic on thei far side. It is true that the duty to look and listen is not applied with strictness to travelers crossing street railways. “ ‘The look and listen rule is not applied with strictness to travelers crossing street railway tracks. But a person about to cross or go upon a street car track must use ordinary care in view of all the circumstances and sur — 627 — roundings. He must make reasonable use of his eyes and ears to note the approach of cars, and where there is nothing to obstruct his view or distract his attention and he goes upon the track immediately in front of a moving car he is guilty of negligence. He should look for approaching cars at a place and time when such looking will be effectual.’ 8 Thomp. on Neg. (White’s Supp. 1914), section 1438.” Virginia Ry. & Power Co. v. Boltz, 122 Va. 649, 95 S. E. 467, 468. But even in such a case they are not relieved from the consequences of failure to take reasonable precaution for their own protection. Stephen Putney Shoe Co. v. Ormsby’s Adm’r, 129 Va. 297, 105 S. E. 563; Meade v. Saunders, 151 Va. 636, 144 S. E. 711. Where, however, the railway is not being operated upon a city street but upon its own right-of-way and across the country, it makes little difference whether the power used be steam or electricity. Washington & O. D. Ry. Co. v. Zell’s Adm’r, 118 Va. 755, 88 S. E. 309; Washington, etc., Ry. v. Thompson, 136 Va. 597, 118 S. E. 76. Moreover, in this case we are not dealing with a failure to look and listen, for it plainly appears that Ford actually saw the car which struck him when it was 670 feet away. The plaintiff contends that Ford was not negligent. In addition, she contends that even if negligence be conceded, her judgment should be sustained upon the doctrine of the last clear chance. In the leading case of Southern R. Co. v. Bailey, 110 Va. 833, 67 S. E. 365, 369, 27 L. R. A. (N. S.) 379, it was said that “* * * where the proximate and efficient cause of the accident involved the concurrent negligence of both plaintiff and defendant, unbroken by any efficient supervening cause, * * * to such case the exception referred to obviously has no application,” and that this was a fundamental rule. Where the negligence of both continues down to the moment of the accident and contributes to the injury, the — 628 — case is one of concurring negligence, and there can be no recovery. Michie’s Digest, vol. 7, p. 667, citing many cases; Green v. Ruffin, 141 Va. 628, 125 S. E. 742, 127 S. E. 486. “Continued and concurring negligence is a complete defense unless there be some circumstances or super-added fact which would make reliance upon it inhuman and culpable. One cannot maim or injure another merely because he is negligent. It is only when these superadded facts or circumstances make the conduct of the defendant the proximate cause that the rule applies.” Virginia Electric & Power Co. v. Vellines, 162 Va. 671, 175 S. E. 35, 40. This doctrine has been frequently dealt with by this court. It is unnecessary to attempt to amplify it. In Norfolk Southern Ry. Co. v. Smith, 122 Va. 302, 94 S. E. 789, 790, Judge Prentis said: “The doctrine of the last clear chance has nowhere been better stated than in the syllabus to the case of Roanoke Ry. & Electric Co. v. Carroll, 112 Va. 598, 72 S. E. 125, thus: ‘The underlying principle of the doctrine of the “last clear chance,” as declared by the decisions of this court, is that, notwithstanding the contributory negligence of the plaintiff, there is something in his condition or situation at the time of the injury to admonish the defendant that he is not able to protect himself. The doctrine is one of prior and subsequent negligence, or of remote and proximate cause, and presupposes the intervention of an appreciable interval of time between the prior negligence of the plaintiff and the subsequent negligence of defendant. Where the negligence of both continues down to the moment of the accident and contributes to the injury, the case is one of concurring negligence, and there can be no recovery.’ ” This statement was re-affirmed and approved by Justice Eggleston in the recent case of Frazier v. Stout, 165 Va. 68, 181 S. E. 377. Before this doctrine can be applied, plaintiff must show by a preponderance of the evidence that at some particular time the motorman, in the exercise of ordinary — 629 — care, saw, or should have seen, that Ford was oblivious to his danger or unable to extricate himself from a position of peril in which his negligence had placed him. Frazier v. Stout, supra; Paytes v. Davis, 156 Va. 229, 157 S. E. 557; Barnes v. Ashworth, 154 Va. 218, 153 S. E. 711. The motorman was warranted in assuming that Ford would continue across the railway track. He could not be charged with knowledge that his failure to do this was due to distant but approaching traffic below the crossing. The evidence discloses that when it became evident that Ford was not going forward, he did apply his brakes. The doctrine of the last clear chance applies with equal force to plaintiff and defendant. Their rights and obligations are the same. Virginia Electric & Power Co. v. Vellines, supra; Green v. Ruffin, supra; McNamara v. Rainey Luggage Corporation, 139 Va. 197, 123 S. E. 515. Plainly it can not be successfully invoked by both parties to one accident. It is never intended that the doctrine of the last clear chance should wipe away or supersede the defense of contributory negligence, or of continuing and concurring negligence. Frazier v. Stout, supra. In this case and the case of Driscoll v. Virginia Electric & Power Co., ante, p. 538, 181 S. E. 402, we have recently given to the matters here involved careful consideration. Plaintiff cannot recover for another reason. Ford saw that he could not go forward and so he either came to a full stop or was “inching along.” He knew that this rapid moving electric car was bearing down upon him, for it was in plain view. He had time in which to remove himself to a place of safety, and yet for some unknown reason he remained in the driver’s seat until he was killed. The case of Dick v. Virginia Electric & Power Co., 158 Va. 77, 163 S. E. 75, 76, is very much in point. There the plaintiff undertook to drive across a street car track but slowed down because of traffic on the far side, when her car stalled oh the track. She knew that a street car was approaching and yet “she sat in her automobile alter — 630 — nately trying to get it started and watching the oncoming car until it struck her automobile and the injuries of which she complains were inflicted.” She had time to get out and save herself. This she did not undertake to do, but relied upon the motorman to relieve her from the peril occasioned by her negligence. The court, quoting from Virginia & Southwestern Ry. Co. v. Skinner, 119 Va. 843, 89 S. E. 887, 888, said: “No one can be allowed to shut his eyes to danger in blind reliance upon the unaided care of another without assuming the consequences of the omission of such care.” It was held that that was a, case of continuing and concurring negligence. The right to recover was denied. In our opinion the doctrine of the last clear chance does not apply. Our conclusion is that Ford was negligent in driving upon the railway track, and he was negligent in remaining in his truck until killed. For reasons stated, we are of opinion that the judgment appealed from should be reversed, and final judgment entered for the defendants. Reversed. Hudgins, Gregory and Chinn, JJ., dissenting. Footnotes [*] Due to circumstances over which we had no control, it was necessary to re-assign the writing of this opinion. This accounts for the delay in the decision.