Present:      All the Justices

RGR, LLC
                                            OPINION BY
v.   Record No. 130633               CHIEF JUSTICE CYNTHIA D. KINSER
                                           JUNE 5, 2014
GEORGIA SETTLE, PERSONAL
 REPRESENTATIVE OF THE ESTATE
 OF CHARLES E. SETTLE, SR., DECEASED

           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                      Mary Grace O'Brien, Judge

     In this wrongful death action arising out of a collision at

a private railroad crossing, we conclude that the decedent,

Charles E. Settle, Sr. (Settle), was contributorily negligent as

a matter of law because he failed to act as a reasonable person

would have acted for his own safety under the particular

circumstances of this case.      Therefore, we will reverse the

circuit court's judgment upholding a jury verdict in favor of

the plaintiff.

                          FACTS AND PROCEEDINGS

     In October 2004, Settle was fatally injured when a train

owned and operated by Norfolk Southern Corporation (Norfolk

Southern) struck the dump truck he was operating.     At the time

of the collision, Settle was traveling on Kapp Valley Way, a

private road that crosses railroad tracks owned by Norfolk

Southern. 1    Because the railroad crossing was private, it was



     1
      The scene of the accident is shown in the photograph
appended to this opinion.
controlled with only "crossbuck signs."      There were no stop

signs, warning signals, or barriers.

     Adjacent to the railroad tracks, the defendant, RGR, LLC,

(RGR) operated a business offloading lumber from train cars and

reloading it onto tractor-trailers.      On the date of the

accident, RGR had lumber stacked near the railroad tracks and

seven feet inside Norfolk Southern's 30-foot right-of-way.        The

edge of the lumber stacks was 23 feet from the center of the

tracks.   The collision occurred after Settle traveled past the

lumber stacks and started to cross the railroad tracks.       The

train hit the front side of Settle's truck.

     Georgia Settle (Mrs. Settle), as personal representative of

her deceased husband's estate, filed this wrongful death action

seeking compensatory damages and named in her fourth amended

complaint RGR, Norfolk Southern, and two other commercial

business entities as defendants.       Mrs. Settle alleged that the

defendants created a hazardous condition by stacking lumber near

the railroad tracks, breached their duty of reasonable care to

Settle by blocking the view of those traveling on Kapp Valley

Way, and failed to take reasonable steps to make the railroad

crossing safe. 2   As a result, Settle, according to the



     2
       Before trial, the claim against Norfolk Southern was
settled, and the claims against the other two defendants were
dismissed with prejudice.


                                   2
allegations, could not see the approaching train in sufficient

time to stop and avoid the collision.

        At trial, the parties stipulated to certain facts.   A third

party owned Kapp Valley Way, and Norfolk Southern owned both the

railroad tracks on which the accident occurred and a right-of-

way that extended 30 feet in each direction from the center of

the tracks.    Norfolk Southern's trains came from both directions

on the tracks that crossed Kapp Valley Way, and its trains did

not come at the same time every day.     The particular train that

struck Settle's truck was traveling at approximately 45 miles

per hour and was composed of three engines and more than 100

cars.    Settle's dump truck was 30 feet in length and measured

eight feet from its front end to the back of the interior of the

cab.    At the time of the accident, Settle's truck was loaded

with 13.21 tons of gravel that he was delivering to a county

sewer system pipeline construction site.     Settle held a

commercial driver's license (CDL) and was employed as a dump

truck driver.

        Settle was driving southbound on Kapp Valley Way (from left

to right in the photograph) toward the railroad crossing.      The

train was traveling east (from bottom to top in the photograph),


     The fourth amended complaint also included a claim for
negligence per se and sought punitive damages. The circuit
court sustained RGR's demurrer and dismissed the negligence per
se claim and request for punitive damages without leave to
amend.


                                   3
approaching Settle from his right.    RGR's lumber stacks were

situated on the north side of the tracks at the corner where

Kapp Valley Way crosses the railroad tracks.   According to a

representative from Norfolk Southern, the sightline at the point

where Kapp Valley Way crosses the railroad tracks extended 800

feet to the west, the direction from which the train came that

struck Settle's truck, and 600 feet to the east.

     Receipts from Settle's deliveries on the day of the

accident reflected that he was making his seventh trip to

deliver gravel to the construction site when the collision

occurred.   One of Settle's co-employees, who had also driven

over the crossing on Kapp Valley Way numerous times, testified,

via deposition, that his usual practice was not to stop at the

crossing but simply to slow down, check for a train, and proceed

over the tracks if a train was not present.    The employee stated

that it was possible to stop before reaching the tracks if a

train was approaching but that "you couldn't see like you

should."    According to the employee, if the lumber stacks were

"out of the way, it would have been a whole lot better."    But,

the employee acknowledged that he had indeed stopped at the

crossing in sufficient time to avoid being struck by a train

coming from the west.   He also stated that no one ever

complained to RGR or Settle's employer about the lumber stacks'




                                  4
obstructing the view of the railroad tracks from Kapp Valley

Way.

       Timothy Weston, the owner of a commercial truck repair

company, testified for Mrs. Settle as an expert on the operation

of the dump truck Settle was driving when he was fatally

injured.     According to Weston, a truck like Settle's, if fully

loaded, will accelerate in first gear from a stationary position

at the speed of one-to-two miles per hour.     In second gear, the

truck, according to Weston, will increase its speed to two-to-

three miles per hour and will travel at five miles per hour in

third gear.     In this particular type of truck, shifting between

gears requires the driver to "push the clutch in, put the truck

in neutral, [and] push the clutch back in," timing it "with the

engine speed [and] decreasing the rpm of the engine . . . when

you go into gear."     According to Weston, if the driver misses a

gear, the truck is in neutral, and if fully loaded, will stop.

Weston approximated that coming to a complete stop with a full

load while traveling five miles per hour would require about ten

feet. 3    Weston also testified that due to various noises inside

the cab of the truck while driving, it is difficult to hear

noises outside the cab.



       3
      The parties agreed that five miles per hour equals 7.33
feet per second, and the circuit court took judicial notice that
the average driver's "perception-reaction time" is 1.5 seconds.


                                   5
     Jose Mendosa was driving a box truck on the opposite side

of the tracks, traveling northbound on Kapp Valley Way (from

right to left in the photograph).     Mendosa and his passenger,

Luis Bonilla, testified that they saw the train approaching from

the railroad crossing at Route 15, to their left, and stopped

their truck at the crossing. 4   Mendosa and Bonilla both stated

that they heard the train's horn once, before the train reached

the Route 15 crossing, but denied that the train blew its horn

again from the time it crossed Route 15 until it hit Settle's

truck.   Mendosa saw Settle's truck approaching the crossing and

stated that Settle was traveling "very slowly," about five miles

per hour.   Mendosa and Bonilla both attempted to get Settle's

attention by waving their arms at him as he neared the crossing,

but neither could see Settle's face through his truck's

windshield.   Mendosa also testified that he had crossed the

track on Kapp Valley Way several times that day and that "it was

difficult to see because of the lumber piles."

     Danny Humphreys owned a business on Kapp Valley Way and was

driving a pick-up truck that stopped behind Mendosa and Bonilla

at the crossing.   Humphreys stated that he did not hear the

train but that his windows were rolled up, he was on the

     4
       The record does not reflect the distance between the
railroad crossing at Route 15 and the Kapp Valley Way crossing.
Testimony and several photographic exhibits, however,
demonstrate that there is a curve in the track between Route 15
and the Kapp Valley Way crossing.


                                  6
telephone, and his air-conditioning was running.   Humphreys also

had traveled on Kapp Valley Way many times the day of the

accident and testified that, when approaching the crossing as

Settle did, he could not see the tracks to the right because of

the lumber stacks.   According to Humphreys, one could only see

whether a train was approaching "[w]hen you get to the edge of

the lumber pile" and that "you would have to kind of look around

the corner."   In addition, because the Kapp Valley Way crossing

was only one lane wide, a driver had to stop if other vehicles

were present and take turns crossing the railroad tracks.   In

Humphreys' experience, most of the trains that crossed Kapp

Valley Way came from the east heading west (from top to bottom

in the photograph), i.e., in the opposite direction as the train

that struck Settle's truck.

     Michael White was employed by RGR and was working outside

in the lumber yard when the accident occurred.   Although White

did not witness the accident, he testified that he heard the

train's horn before it crossed Route 15 and then heard a screech

and a bang from the accident perhaps 30 seconds later.   Michael

Lawson, White's supervisor, was also outside and likewise

estimated that about 30 seconds elapsed between the time the

train blew its horn and the accident occurred.

     Roger Janney, the conductor of the Norfolk Southern train

that struck Settle's truck, testified that the engineer blew the


                                 7
train's horn and started slowing the train as it approached the

Route 15 crossing.   Janney said that as the train "came around

the curve" after crossing Route 15 and approached the Kapp

Valley Way crossing, he saw Settle's truck come into sight from

behind a building.   Janney next saw Settle as the front of his

truck appeared from behind the lumber stacks.    According to

Janney, Settle was looking straight ahead.   Janney could not

estimate Settle's speed but stated that the truck was moving

slowly.   Thomas Street, the train's engineer, confirmed that he

blew the train's horn before reaching Route 15, and both he and

Janney testified that Street blew the horn again after crossing

Route 15 in advance of the Kapp Valley Way crossing.   Street

stated that he saw Settle twice before his truck reached the

crossing, that Settle was looking straight ahead when he entered

the crossing, and that Settle was driving about two-to-four

miles per hour.

     Richard Young, testifying for RGR as an expert on drivers

with a CDL, stated that such a driver would be required to stop

at the crossing adjacent to the lumber stacks because the driver

would not be able to see if a train was coming until he or she

was within 15 feet of the tracks.    Young conceded, however, that

a driver would not be required to stop if, using ordinary care,

the driver believed there was no train coming.   Young also




                                 8
agreed that "commercial drivers should not stop closer than 15

feet from the rail crossing."

     At the close of Mrs. Settle's evidence and again at the

close of all the evidence, RGR moved to strike.   RGR argued,

inter alia, that the evidence established that Settle was

contributorily negligent as a matter of law because he never

looked to see if a train was approaching and his failure to do

so, not RGR's lumber stacks, was a proximate cause of the

accident.   The circuit court denied the motions to strike.     The

jury returned a verdict for Mrs. Settle in the amount of $2.5

million, along with pre-judgment interest.   RGR filed a motion

to set aside the verdict, again raising the issue of

contributory negligence and requesting, in the alternative, a

new trial or a remittitur of the verdict.    After a hearing, the

circuit court denied RGR's motions and entered a final order in

accord with the jury's verdict.   This appeal followed.   The

dispositive issue is whether Settle was contributorily negligent

as a matter of law.

                             ANALYSIS

     "Contributory negligence is an affirmative defense that

must be proved according to an objective standard whether the

plaintiff failed to act as a reasonable person would have acted

for his own safety under the circumstances."   Jenkins v. Pyles,

269 Va. 383, 388, 611 S.E.2d 404, 407 (2005); accord Sawyer v.


                                  9
Comerci, 264 Va. 68, 74, 563 S.E.2d 748, 752 (2002); Ponirakis

v. Choi, 262 Va. 119, 124, 546 S.E.2d 707, 710 (2001).     The

defendant has the burden to prove contributory negligence by

"the greater weight of the evidence."     Sawyer, 264 Va. at 75,

563 S.E.2d at 752.    "[J]ust as a plaintiff is required to

establish a prima facie case of negligence, a defendant who

relies upon the defense of contributory negligence must

establish a prima facie case of the plaintiff's contributory

negligence."     Id. at 75, 563 S.E.2d at 753.   To do so, a

defendant must show that the plaintiff was negligent and that

such negligence was a proximate cause of the accident.         Rascher

v. Friend, 279 Va. 370, 375, 689 S.E.2d 661, 664-65 (2010).

Ordinarily, these are questions of fact to be decided by the

fact finder.     Jenkins, 269 Va. at 388, 611 S.E.2d at 407.     The

issue becomes one of law "only when reasonable minds could not

differ about what conclusion could be drawn from the evidence."

Id. at 389, 611 S.E.2d at 407 (collecting cases).

        Armed with a jury verdict approved by the circuit court,

Mrs. Settle now occupies "the most favored position known to the

law."    Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 54,

710 S.E.2d 736, 739 (2011) (internal quotation marks omitted);

accord Bitar v. Rahman, 272 Va. 130, 137, 630 S.E.2d 319, 323

(2006); Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 57, 419

S.E.2d 627, 630 (1992).    Thus, she is entitled to have the


                                  10
evidence and all inferences reasonably drawn from it viewed in

the light most favorable to her.    Norfolk S. Ry. Co. v. Rogers,

270 Va. 468, 478, 621 S.E.2d 59, 65 (2005).   We will not set

aside the circuit court's judgment unless it is "plainly wrong

or without evidence to support it."   Code § 8.01-680; Rogers,

270 Va. at 478, 621 S.E.2d at 65.   Upon applying these

principles, if it appears that a judgment is plainly wrong or

without evidence to support it, we must set it aside.     Atrium

Unit Owners Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548

(2003).

     RGR asserts that the circuit court erred by denying its

motions to strike and to set aside the verdict because Settle

was contributorily negligent as a matter of law.   RGR contends

that Settle was familiar with the Kapp Valley Way crossing, that

although other individuals heard the train's horn when it

approached the Route 15 crossing, he did not look to his right

or left and did not stop before attempting to cross the railroad

tracks despite the approaching train.   According to RGR, Settle

failed to exercise reasonable care before crossing the tracks

and his failure to do so was a proximate cause of the accident.

     As Settle approached the Kapp Valley Way railroad crossing,

he "had the duty to look and listen with reasonable care; he did

not have the absolute duty to discover the presence of the

train, unless by so looking and listening he was bound to have


                               11
discovered it."    Norfolk & W. Ry. Co. v. Greenfield, 219 Va.

122, 132, 244 S.E.2d 781, 786-87 (1978). 5   "Repeatedly, we have

said that 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."    Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 171, 427

S.E.2d 724, 730 (1993) (quoting Norfolk & W. Ry. Co. v. Epling,

189 Va. 551, 557, 53 S.E.2d 817, 820 (1949)).    Further, "[i]f a

traveler drives blindly upon a crossing whether his view is

obstructed or unobstructed, takes no precautions for his safety

and is injured, his negligence will preclude any recovery on his

part."    Southern Ry. Co. v. Campbell, 172 Va. 311, 318, 1 S.E.2d

255, 258 (1939).   "'He can not wait until his view is obstructed

and say it would have been useless for him to have looked

then.'"    Id. (quoting Virginian Ry. Co. v. Rodgers, 170 Va. 581,

587, 197 S.E. 476, 478 (1938)).

     We applied these principles in Wright, the facts of which

are strikingly similar to those in this case.    There, the

     5
       The jury was instructed that "[a] driver crossing train
tracks has the duty to look and listen with reasonable care; he
[does] not have the absolute duty to discover the presence of
the train, unless by so looking and listening he was bound to
have discovered it," and that a driver has the "duty to use
ordinary care to look and listen effectively for an approaching
train before crossing the tracks," even if the railroad failed
to sound a horn, and "to stay off the tracks if he becomes aware
of an approaching train."


                                  12
plaintiff, an experienced dump truck driver, was "thoroughly

familiar" with a public railroad crossing, having "traversed it

in his truck on nine occasions during a two-day period before" a

collision occurred between his truck and a train.     Wright, 245

Va. at 171, 427 S.E.2d at 730.     The plaintiff was aware that he

needed to rely on his senses of sight and sound to detect an

approaching train because there were no automatic warning

devices at the crossing.     Id.   He further knew of "the

limitations to sight and hearing" due to the configuration of

his truck's cab and the angle of the street relative to the

railroad tracks.    Id.   Nevertheless, the plaintiff "drove his

truck from a stopped position of safety onto the crossing

directly in front of the train when its engine was less than ten

feet away."   Id.

     The plaintiff's experts testified that it was "impossible"

for the plaintiff to have seen or heard the train and that the

crossing was "not reasonably safe" and "ultrahazardous."     Id. at

164-65, 427 S.E.2d at 726 (internal quotation marks omitted).

Nevertheless, the trial court concluded that the plaintiff was

contributorily negligent as a matter of law.     We agreed, stating

that the plaintiff, "knowing the dangers to be encountered at

the crossing," could have taken numerous steps to avoid the

collision, including "open[ing] his window after his truck had

been loaded and before [leaving] the quarry [or] making a wider


                                   13
right turn, thus bringing his truck to an attitude with relation

to the crossing that he could see clearly north along the

track."   Id. at 171-72, 427 S.E.2d at 730.   But, the plaintiff

did none of those things and thereby caused the accident.     Id.

at 172, 427 S.E.2d at 730; see also Greenfield, 219 Va. at 133,

244 S.E.2d at 787.

     We reach the same conclusion in this case.   The

uncontradicted evidence established that Settle was familiar

with the crossing, having proceeded through it numerous times on

the day of the accident.   So, he had notice of the limited

sightline posed by the configuration of the lumber stacks and

the angle of the tracks to both east and west.    In light of this

known danger, "reasonable care" required Settle to approach the

crossing in such a way that would allow him to stop before

reaching the tracks if, by looking and listening, he was bound

to detect an approaching train.    See Campbell, 172 Va. at 317, 1

S.E.2d at 257 ("A traveler . . . must always exercise care

proportioned to the known danger, and this care must be such as

one who knows the danger and of the prior right of passage [of

the moving train] would be expected to exercise.").

     According to the individuals who witnessed the accident,

Settle was traveling slowly as he approached the crossing, at a

speed of approximately five miles per hour or less.     Regardless

of his speed, Settle did not approach the crossing in a manner


                                  14
that would have enabled him to stop when looking and listening

with reasonable care would have revealed the presence of the

train.   Either Settle failed to look and listen with reasonable

care; or if he did so, he failed to see the plainly visible

approaching train; or if he did observe the train, he failed to

stop before traveling onto the tracks.   Under any of these

scenarios, Settle failed to exercise reasonable care for his own

safety despite the known dangerous sightline at the Kapp Valley

Way crossing.   See Norfolk & W. Ry. Co. v. Benton, 160 Va. 633,

641, 169 S.E. 560, 563 (1933) (holding that the plaintiff

"either did not look toward the approaching train which was in

his plain view practically all the time, or if he looked no heed

was given to it" and that "[s]uch conduct in either event [was]

contributory negligence as a matter of law"); Norfolk & W. Ry.

Co. v. Hardy, 152 Va. 783, 796, 148 S.E. 839, 842 (1929) (same);

Rodgers, 170 Va. at 589, 197 S.E. at 479 (same).   Settle's

failure to do so was negligence as a matter of law and that

negligence was a proximate cause of the accident and his death.

See Ford Motor Co. v. Boomer, 285 Va. 141, 150, 736 S.E.2d 724,

728 (2013) ("The proximate cause of an event is that act or

omission which, in natural and continuous sequence, unbroken by

an efficient intervening cause, produces that event, and without

which that event would not have occurred.") (internal quotation

marks and citation omitted).


                                15
     In contrast to the facts in Wright and in this case, those

in Campbell were such that a jury, not the trial court, should

determine whether the plaintiff there was contributorily

negligent.    In Campbell, obstructions prevented the plaintiff

from having a clear view of the railroad tracks for trains

approaching from the right until the front of his truck was near

the rails.    172 Va. at 315, 1 S.E.2d at 256.    The automatic

warning gong with a red light in its center was flashing when

the train moved forward over the crossing and stopped when the

train advanced beyond the crossing.     Id.   After lowering his

window, looking, and listening, the plaintiff believed that the

train had passed on and thus drove slowly onto the crossing,

when his truck was struck by the backward movement of the train

coming from the plaintiff's right.    Id.     We concluded that the

plaintiff's "conduct on approaching the crossing under the

surrounding conditions, measured by what a prudent man in the

exercise of ordinary care would have done under like

circumstances, was at least such as would cause fair-minded men

to differ."    Id. at 319, 1 S.E.2d at 258.    We cannot say the

same with regard to Settle's conduct.

     Mrs. Settle, however, argues that the question of

contributory negligence was for the jury because pertinent facts

were disputed and because Settle faced a predicament at the

crossing, helpless to oncoming trains whether he stopped at the


                                 16
crossing or approached it slowly.    If Settle had stopped his

truck just past the lumber stacks so he could see a train coming

from the west, Mrs. Settle contends, he would have been unable

to get his dump truck moving fast enough to safely cross the

tracks before a train — not viewable at the time he stopped —

could have approached from the east, where a curve in the track

limited Settle's visibility to 600 feet.    Because Settle's

truck, when fully loaded, could accelerate at the rate of only

one-to-two miles per hour in first gear and three-to-four miles

per hour in second gear and because shifting gears in the truck

took additional time, Mrs. Settle argues that stopping to look

for oncoming trains would have put Settle at great risk to be

hit by a train approaching from the east.

     This argument overlooks the facts of the case.    First, as

the jury was instructed, Settle had no duty to stop, only the

"duty to use ordinary care to look and listen effectively for an

approaching train before crossing the tracks."   Second, we are

not faced with a situation where a train was approaching from

the east outside Settle's visibility range.   Instead, there is

no question that the train approached from the west and was

visible when Settle passed the lumber stacks and before he

reached the crossing.   By looking and listening with reasonable

care as he approached the crossing, Settle could have seen the

immediate presence of the train and reacted in time to stop and


                                17
avoid the collision. 6   See Washington & Old Dominion Ry. Co. v.

Zell, 118 Va. 755, 759, 88 S.E. 309, 310 (1915) (noting that the

contention that the plaintiff had to be close to the railroad

tracks before he could see any distance to the west

"emphasize[d] the importance of caution on his part").    Because

he failed to do so, Settle was, tragically, like the plaintiff

in Wright, "the architect of his own misfortune."     245 Va. at

172, 427 S.E.2d at 730.

                             CONCLUSION

     For these reasons, we will reverse the circuit court's

judgment and enter final judgment for RGR. 7



                                       Reversed and final judgment.




     6
       Indeed, according to Mrs. Settle's allegations, the
crossbuck sign at this railroad crossing "warn[s] a driver to be
prepared to slow down, look and listen for a train with
reasonable care, and be prepared to stop if he can reasonably
determine that a train is in dangerous proximity to the
crossing."
     7
       In light of our decision, it is not necessary to address
RGR's other assignments of error.


                                 18
JUSTICE POWELL, with whom JUSTICE MIMS joins, dissenting.

     In my opinion, the majority’s holding is not supported by

our jurisprudence with regard to contributory negligence.

Therefore, I must respectfully dissent.

          Contributory negligence is an affirmative
          defense that must be proved according to an
          objective standard whether the plaintiff
          failed to act as a reasonable person would
          have acted for his own safety under the
          circumstances. The essential concept of
          contributory negligence is carelessness.

Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d 404, 407 (2005)

(citations omitted).

     According to the majority, Settle was contributorily

negligent as a matter of law because “[r]egardless of his speed,



                               19
Settle did not approach the crossing in a manner that would have
                            1
enabled him to stop when        looking and listening with reasonable

care would have revealed the presence of the train.”       In so

holding, the majority seemingly disregards case law establishing

that such a determination is a question of fact to be determined

by a jury.

     In Southern Railway Co. v. Bryant, 95 Va. 212, 219, 28 S.E.

183, 185 (1897), this Court specifically held that:

             Where the view of the track is obstructed,
             and the railroad company has failed to give
             notice of the approach of its train to a
             crossing upon the highway, and a person in
             attempting to go across the track, not being
             able to see the train on account of
             obstructions, and being obliged to act upon
             his judgment at the time of crossing, is
             injured, the propriety of his going upon the




     1
       In my opinion, the use of the word “when” changes the
focus of this factual inquiry. The majority cites Southern
Railway Co. v. Campbell, 172 Va. 311, 317, 1 S.E.2d 255, 257
(1939), for the proposition that “reasonable care” required
Settle to approach the crossing in such a way that would allow
him to stop before reaching the tracks “if,” by looking and
listening, he was bound to detect an approaching train. Indeed,
the jury was instructed, inter alia, that a driver has the “duty
to use ordinary care to look and listen effectively for an
approaching train before crossing the tracks, “even if the
railroad failed to sound a horn,” and “to stay off the tracks
‘if’ he becomes aware of an approaching train.” The word “if”
is conditional requiring the jury to determine whether Settle
became aware of the train. The use of the word “when,” however,
makes it inevitable that he would become aware. The use of the
word “if” in the jury instructions clearly left it to the fact
finder to determine whether Settle was contributorily negligent.


                                    20
          track under such circumstances is not a
          question of law to be decided by the court,
          but a matter of fact to be determined by the
          jury.

(Emphasis added.)

     Similarly, in Southern Railway Co. v. Campbell, 172 Va.

311, 322, 1 S.E.2d 255, 259 (1939), a case factually similar to

the present case, this Court specifically held that the question

of contributory negligence is a question for the jury.

          If his view is obstructed and he exercises a
          reasonable degree of caution, drives slowly,
          looks and listens for trains but sees none,
          proceeds in a cautious manner over the
          tracks and is injured, the question of
          whether he was negligent under all of the
          circumstances must be for the jury.

Id. (emphasis added).

     The evidence in this case demonstrates that Settle

exercised a reasonable degree of caution as he approached the

railroad crossing, as he slowed down to somewhere between

walking speed and five miles per hour as he approached.   Indeed,

at trial, RGR actually put on evidence that other drivers

approached the crossing in the same manner as Settle, (i.e.,

slowing down as they approached the crossing but not coming to a

complete stop).   Further, it is apparent that he reasonably

believed that no train was coming as he approached the tracks.

Several witnesses testified that the train did not blow its

whistle as it approached the crossing, and thus, viewed in the




                                21
light most favorable to Mrs. Settle, this evidence indicates

that Settle had no auditory warning that a train was coming.

Additionally, the lumber stacks blocked his view of any

approaching trains until his truck was approximately 12.5 feet 2

from the tracks. 3   Thus, because there is evidence in the record

from which a jury could have found that Settle exercised a

     2
       The right-of-way spans 30 feet from the midpoint of the
tracks and the tracks are five feet wide, meaning that the
right-of-way only extends 27.5 feet on either side of the
tracks. The parties stipulated at trial that the lumber pile
was seven feet inside the right-of-way (i.e., 20.5 feet from the
edge of the tracks closest to Settle’s truck) and that it was
eight feet from the front bumper of Settle’s truck to the rear
of the cab. Thus, at the earliest point where Settle’s view was
no longer obstructed by the lumber pile, the front bumper of his
truck was approximately 12.5 feet from the tracks.
     3
       While it is true that Settle could have stopped prior to
this point, doing so would have proven futile. It is
indisputable that, prior to the point where the front of
Settle’s truck was 12.5 feet from the tracks, his view was
completely obstructed by the lumber stacks.
Furthermore, there is evidence in the record indicating that
stopping at this point would have potentially exposed Settle to
danger from a train coming from the other direction. Only 600
feet of track was visible to the east. A westbound train
traveling at the same speed as the eastbound train,
approximately 45 miles per hour, in this case would cross that
distance in approximately 9.1 seconds. A driver of a truck
similar to Settle’s, stopped at a point beyond the lumber stacks
close enough to visualize the track to the west, would have to
cross more than 47.5 feet to clear the track: at least the 12.5
feet remaining between the front bumper and the track, the 5-
foot width of the track itself, and the 30-foot length of the
truck. To cover those 47.5 feet in the time it would take a
westbound train traveling at 45 miles per hour to cover the 600
feet of visible track would require a continuous speed exceeding
3.5 miles per hour. Coming from a dead-stop, such a feat would
be impossible given the truck that Settle was driving. Thus,
the lumber stacks created a situation that made the crossing
both dangerous to stop at and dangerous to go through.


                                 22
reasonable degree of caution, drove slowly, looked and listened

as best he could under the circumstances, and proceeded in a

cautious manner, according to this Court in Campbell, the

question of whether Settle was contributorily negligent is a

matter to be decided by a jury.

       According to the majority, Settle either “failed to look

and listen with reasonable care; or if he did so, he failed to

see the plainly visible approaching train; or if he did observe

the train, he failed to stop before traveling onto the tracks.”

As I previously explained, there was evidence from which a fact

finder could have found that Settle looked and listened as best

he could under the circumstances.      Further, there is evidence

that the train was not plainly visible due to the location of

the lumber stack.   Thus, the only remaining basis for finding

Settle contributorily negligent as a matter of law would be that

Settle failed to stop before traveling onto the tracks.

Notably, this rationale has never been relied upon by this Court

as the basis for finding contributory negligence as a matter of

law.   Rather, the general rule has been announced that whether

one crossing a railroad grade is required to stop before going

thereon is a question for the jury under proper instructions.

Campbell, 172 Va. at 317, 1 S.E.2d at 257.     Indeed, in deciding

contributory negligence as a matter of law, this Court has

always looked to whether the driver took no heed of the


                                  23
approaching train.    See Norfolk & W. Ry. Co. v. Benton, 160 Va.

633, 641, 169 S.E. 560, 563 (1933) (holding that a driver was

contributorily negligent if he “either did not look toward the

approaching train which was in his plain view practically all

the time, or if he looked [and] no heed was given to it”)

(emphasis added).    Under this rationale, every driver involved

in a collision at a crossing with an obstructed view must

necessarily be contributorily negligent as a matter of law

because the mere fact that the collision occurred demonstrates

that the driver ultimately “failed to stop before traveling onto

the tracks.”

     Furthermore, such an approach fails to take into account

that Settle’s failure to stop may have been the result of the

RGR’s negligence.    This Court has specifically recognized that

it is for the jury to consider whether the negligence of the

tortfeasor affected the actions of the driver.   See Kimball v.

Friend, 95 Va. 125, 138-39, 27 S.E. 901, 903 (1897).   Today,

however, the majority has failed to give any consideration to

the effect that RGR’s negligence may have had upon Settle’s

actions.

     This Court has long recognized that the objective standard

applicable to railroad crossings is that a driver approaching a

crossing has “the duty to look and listen with reasonable care;

he [does] not have the absolute duty to discover the presence of


                                 24
the train, unless by so looking and listening he was bound to

have discovered it.”   Norfolk & W. Ry. Co. v. Greenfield, 219

Va. 122, 132, 244 S.E.2d 781, 786-87 (1978).    Further, this

Court has gone so far as to recognize the existence of the

presumption that an individual approaching a crossing has

fulfilled the duty to look and listen.     Kimball, 95 Va. at 139,

27 S.E. at 903 (“Where a traveller is killed at a railroad

crossing, and the negligence of the railroad company is

established, in the absence of evidence to the contrary, the

presumption is, though, perhaps slight, that the traveller did

his duty in approaching the crossing.”).    By declining to impose

an absolute duty and creating such a presumption, this Court has

implicitly recognized that there are situations where an

individual exercising reasonable care will not become aware of

the presence of a train until it is too late to stop.

     Although the majority states that the facts in Wright are

“strikingly similar to those in the present case,” it ignores

the most significant fact of that case, a fact which

distinguishes Wright from the present case: in Wright, the

driver was unaware of the approaching train as a direct result

of his own unreasonable actions.     Specifically, this Court

recognized that the driver’s view was obstructed because he

failed to take a wide enough right turn to bring “his truck to

an attitude with relation to the crossing that he could see


                                25
clearly.”    Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 171-72,

427 S.E.2d 724, 730 (1993).     In the present case, however,

Settle’s obstructed view was caused by RGR’s placement of the

lumber stacks.    Short of physically moving the lumber stacks

himself, there was nothing that Settle could have done to avoid

having his view obstructed by the lumber stacks without

imperiling himself to a train approaching from the other

direction.    Thus, Wright is wholly inapposite to the present

case.

        Rather, in my opinion, the facts in this case are more akin

to Campbell.     In both cases, the drivers’ view of the tracks was

obscured in one direction, such that the drivers were

“prevented . . . from obtaining a clear view of the track for

trains approaching from the right until the front of the truck

was quite near the rails.”      Campbell, 172 Va. at 315, 1 S.E.2d

at 256.    In both cases, the drivers approached the crossing

“cautiously and slowly.”      Id.   In Campbell, there was

affirmative evidence that the driver looked and listened for an

oncoming train.     Id.   As I previously noted, there is evidence

in the present case from which a jury could find that, to the

extent that he was able to, Settle did the same.      The only

significant difference in the cases is the presence of a silent

warning gong in Campbell, while there was no warning gong at all

in the present case.      However, this amounts to the functional


                                    26
equivalent of the train’s failure to sound its horn as it

approached the crossing in the present case.   In both

situations, a driver would expect to hear the whistle or the

warning gong if a train was approaching.   Thus, the failure to

sound the whistle is the functional equivalent of a non-

functioning warning gong and, therefore, it is merely a factor

for the jury to consider in determining whether the driver

exercised reasonable precaution under the circumstances.    Id. at

322-23, 1 S.E.2d at 259-60.

     As I do not believe that Settle was contributorily

negligent as a matter of law, nor do I believe the trial court

erred in any other respect, I would affirm the decision of the

trial court in its entirety.




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