## Facts

- Riley E. Wright, an experienced dump-truck driver, was catastrophically injured when his truck collided with a Norfolk and Western Railway train at a public grade crossing in Brookneal, Virginia.
- The crossing was marked with crossbucks and an advance warning sign; it had no gates, flashing lights, or other automatic devices.
- The track ran north–south; Maddox Street crossed at an angle. The track was straight for a substantial distance north of the crossing, and conditions were clear and dry at about 12:45 p.m.
- Wright lived nearby, had frequently used the crossing, and had crossed it four times earlier that day while hauling gravel.
- On the trip at issue, Wright followed another dump truck that successfully crossed. Wright then drove slowly onto the tracks and was struck almost immediately; evidence placed the train less than ten feet away when he entered the crossing.
- Wright did not testify due to his disabling injuries. Plaintiffs presented eyewitness and expert testimony that the crossing lacked adequate safety devices and that the truck/crossing geometry limited Wright’s view.
- Railroad evidence indicated the train was traveling about 34 mph with headlight illuminated and bell ringing and whistle sounding as it approached. The railroad argued Wright failed to perceive the train due to his own in-cab conditions (closed windows, air conditioning, and music).

## Issues

1. Whether Wright was contributorily negligent as a matter of law, barring recovery for negligence.
2. Whether the railroad waived contributory negligence by not objecting to a jury instruction that submitted contributory negligence to the jury.
3. Whether plaintiffs were entitled to an instruction on willful and wanton negligence and whether exclusion of evidence regarding the crossing’s dangerousness and the railroad’s knowledge required reversal.

## Decision

- The Supreme Court of Virginia affirmed the circuit court’s judgment for the railroad, which had set aside a $4 million jury verdict for plaintiffs and entered judgment notwithstanding the verdict.
- The court held Wright was contributorily negligent as a matter of law and that his negligence proximately contributed to the collision; reasonable factfinders could not differ on that conclusion on the undisputed evidence.
- The court held the railroad did not waive contributory negligence; it pled the defense and consistently asserted no jury issue existed, and it could seek post-trial relief on that ground despite the instruction.
- Because contributory negligence barred recovery, the court rejected plaintiffs’ remaining claims (including willful-and-wanton instruction and evidentiary challenges) as not warranting reversal.

## Legal Principles

- A railroad grade crossing constitutes a warning of danger, imposing on travelers a duty to look and listen with reasonable care and to use ordinary senses to detect an approaching train.
- A motorist has no absolute duty to discover a train, but if reasonable looking and listening would have revealed the train, failure to do so constitutes contributory negligence.
- Under Virginia’s contributory negligence rule, any plaintiff negligence that proximately contributes to the injury bars recovery, regardless of the defendant’s negligence.
- The absence of gates, lights, or other automatic warning devices does not relieve a motorist of the duty to exercise reasonable care at a crossing.
- A defendant does not waive a pleaded contributory-negligence defense by allowing the issue to go to the jury; the defendant may still seek to set aside a verdict where the evidence permits only one conclusion.

## Conclusion

The court affirmed judgment for the railroad by holding that the driver’s failure to look and listen before entering a clearly marked crossing, under conditions that would have revealed the approaching train, was contributory negligence as a matter of law; it also held the railroad preserved the defense notwithstanding a jury instruction submitting contributory negligence to the jury.


Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 427 S.E.2d 724 (1993)