Wright v. Norfolk & W. Ry. Co.

245 Va. 160, 427 S.E.2d 724 (1993)



A railroad track is a proclamation of danger and the operator of a vehicle approaching a grade crossing is required to look and listen at a time and place when both looking and listening will be effective, intelligently using both eyes and ears. When a vehicle operator drives blindly upon a grade crossing, whether his view is obstructed or unobstructed, and takes no precaution for his own safety and is injured, his negligence precludes recovery. Indeed, the greater the danger at a particular crossing, the greater the vigilance which is required by the public highway traveler.


Riley E. Wright was severely injured in a collision between the dump truck he was operating and a Norfolk and Western Railway Company train at a public crossing. Wright's guardians filed this negligence action against N & W seeking damages on behalf of their ward, a disabled person. The trial judge set aside the jury verdict for truckdriver and entered judgment for railroad based on truckdriver's contributory negligence as a matter of law. 


Was the truck driver guilty of contributory negligence?




The court affirmed finding that railroad did not waive the defense of contributory negligence as a matter of law by failing to object to jury instructions where it pled the affirmative defense, and consistently maintained that no jury issue was presented on that question. The court agreed that truckdriver was given adequate opportunity to address the issue, and the trial judge was afforded the opportunity to rule intelligently on the issue where it was spoken to at every meaningful stage of the trial. The court held that the verdict was properly set aside on the ground that truckdriver was guilty of contributory negligence as a matter of law because although he was very familiar with the hazards of the crossing, he failed to look and listen with reasonable care by leaving his window rolled up and his air conditioning and radio on, and failed to discover the presence of the train when its engine was less than 10 feet away.

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