Opinion.

murrer was upon the merits decided adversely to the appellant. We cannot now inquire in this suit whether the court erred in sustaining the demurrer to the bill in the first suit, for that litigation is finally ended. It is doubtless true that the demurrer should have been overruled and the bill held sufficient as to allegations that the order constituted an equitable assignment. Watson v. Brunner, 128 Va. 623, 105 S. E. 97. If error was then committed, it could have been corrected only by bill of review or by appeal to this court within the periods limited by statute. The appellant did file his petition for an appeal, which was refused. In that petition, however, he expressly stated that he was "not seeking to enforce a personal liability claim against the owner, J. A. Cook, named in this petition, but petitioner is relying solely upon his rights to enforce his mechanic's lien filed as a subcontractor under the terms and provisions" of the statute.

[4] The conclusion to us is irresistible that the plaintiff is concluded by the final decree in the first suit, and cannot now reopen the identical issues which were finally there determined. The cause of action is between the same parties, the order relied on here as an equitable assignment is the same order under which the same claim was also asserted in the bill in the former suit, and the proof necessary to sustain the claim would of necessity be identical with that which would have been necessary in the first suit. The trial court committed no error in sustaining the plea.

Affirmed.

Syllabus.

Richmond.

BLACKBURN SMITH, ADMINISTRATOR OF AMOS CHAPMAN, DECEASED, V. WALKER D. HINES, DIRECTOR GENERAL OF RAILROADS OF THE UNITED STATES AND AGENT UNDER THE FEDERAL TRANSPORTATION ACT OF 1920.

November 16, 1922.

1. DEMURRER TO THE EVIDENCE-General Rule.-The demurrant is considered as admitting the truth of all his adversary's evidence and all just inferences that can be properly drawn therefrom by the jury, and as waiving all of his own evidence which conflicts with that of his adversary, or which has been impeached, and all inferences from his own evidence (although not in conflict with his adversary's) which do not necessarily result therefrom.

2. DEMURRER TO THE EVIDENCE-Impossibilities—That which is Judicially Known to be Untrue.-The court, however, is not obliged to accept as true what it knows judicially to be untrue, nor what, in the nature of things, could not have occurred in the manner and under the circumstances mentioned, nor what is not susceptible of proof.

3. CROSSINGS-General Rule-Warnings of Approach of Train-Traveler's Duty-Duty to Look and Listen-Last Clear Chance.-It is a general rule of law that while it is the duty of a railway company to give notice of the approach of its trains to a crossing, the reciprocal duty is imposed upon a person about to go on its track to exercise ordinary care and caution, whether it be a highway or a licensed way. The track itself is a proclamation of danger. It is his duty before going upon it to look and listen. If he fails, and is injured thereby, his own act and negligence so contribute to his injury that he is not entitled to recover, unless the company, after it discovered or ought to have discovered his peril, might have avoided the injury by the exercise of ordinary care.

4. CROSSINGS-Duty to Look and Listen-Exceptions to the General Rule.— There is a class of cases in which it is held that reasonable belief that no train is approaching a crossing relieves a traveler who fails to look and listen of the imputation of negligence as a matter of law; e. g., where the warning gong at the crossing is silent, in cases of flying switches, where one train follows another so closely as to mislead or confuse a traveler, etc.

Syllabus.

5. CROSSINGS-Care of Traveler in Approaching Crossing-Burden of Proof. -The burden of showing that a traveler injured or killed at a crossing was not in the exercise of ordinary care and caution in approaching the crossing is upon the defendant, unless it is disclosed by the plaintiff's evidence, or can be fairly inferred from all the circumstances of the case.

6. CROSSINGS Care of Traveler in Approaching Crossing-Open Gate or Silent Gony-When Negligence of Traveler Question for Jury-Where Reduced Speed and Timely Warnings are to be Expected.-The erection of gates, gongs, or other devices at highway or street crossings to warn travelers of approaching trains does not excuse a traveler at such crossings from exercising ordinary care and caution. And while courts and text writers differ as to the degree of reliance that may be placed upon the invitation which an open gate or silent gong gives to the traveler to cross, they generally, if not universally, hold that the same degree of care and caution is not required of him as if there was no such invitation. The question of negligence in such a case is peculiarly one for the consideration of the jury. And the rule as to a silent gong applies equally well to the conduct of a traveler at a crossing where reduced speed and timely warnings are reasonably to be expected.

7. CROSSINGS-Obstruction-When Contributory Negligence for Jury.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 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. 8. NEGLIGENCE-Contributory Negligence-Presumption of Contributory Negligence. Contributory negligence is as distinctly a wrong in the plaintiff as negligence is in the defendant, and it is as much against the principles of the law to presume it on the one side as on the other. 9. CROSSINGS-Contributory Negligence-Presumption of Contributory Negligence Case at Bar.-In the instant case, a demurrer to the evidence in an action for death arising out of an accident at a crossing, the evidence showed that decedent slowed up his truck as he approached the crossing, and there was no evidence that he did not look and listen. The inference most favorable to the demurree must be drawn from the fact that decedent reduced the speed of his truck. Held: That self-preservation and the duty to protect the children riding with decedent and in his care negatived the suggestion of negligence and strengthened the presumption that he was exercising ordinary care.

10. CROSSINGS-Contributory Negligence-Choice Between two Courses of Ac

Statement.

tion-Case at Bar.--In the instant case plaintiff's intestate was killed while attempting to cross the railroad track. The gong at the crossing was not sounding and because of a high wind and the noise of a near by mill the noise of the approaching train could not be heard. On account of obstructions he could not see the approaching train until he was within fifteen or eighteen feet of the track. The speed of the train was excessive.

Held: That, in such emergency, with only four and one-half seconds in which to decide whether to proceed or to apply his brakes, it was not negligence in law if decedent acted unwisely.

11. NEGLIGENCE-Contributory Negligence-Sudden and Unexpected Danger— Choice of Course of Action.-In cases of sudden and unexpected danger, necessitating immediate decision as to which of two or more ways of escape should be resorted to, the law makes allowance for errors of judgment, even though it appears that a resulting accident could have been avoided if the party so placed in peril had pursued a different course.

12. CROSSINGS--Contributory Negligence-Look and Listen--When Care to be Exercised by Traveler for Jury-Case at Bar.-In the instant case, an action for death arising out of a collision at a crossing, it was conceded that the defendant railroad was negligent in failing to give any signal for the crossing, that the electric gong was silent, and that the train was running about forty miles an hour across a much traveled street. The noise of the approaching train could not be heard by the decedent. Decedent's view of the track was obstructed until he was within fifteen or eighteen feet thereof. Decedent reduced his speed but did not stop.

Held: That it could not be said as a matter of law that plaintiff's intestate was guilty of contributory negligence. His negligence was a question for the jury, and as they might have found for the plaintiff, the court must upon a demurrer to the evidence.

Error to a judgment of the Circuit Court of Clarke county, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.

Reversed and final judgment.

The opinion states the case.

Ward & Larrick, Blackburn Smith and Robert F. Leedy, for the plaintiff in error.

Aubrey G. Weaver and W. T. Lewis, for the defendant in error.

Opinion.

WEST, J., delivered the opinion of the court.

This action arises out of a collision between an automobile truck operated by the plaintiff's intestate, Amos Chapman, and a train operated by the Director General of Railroads over the Norfolk and Western Railway, in which Chapman was instantly killed and the truck demolished. The jury returned a verdict for $10,000 in favor of the plaintiff, subject to the ruling of the court on a demurrer to the evidence. The demurrer was sustained and judgment entered for the defendant, and the case is here on a writ of error.

The Berryville turnpike, extending from the Shenandoah river to Winchester, passes through the town of Berryville, where it traverses Main street. It is much traveled and is the principal highway to Berryville and points beyond. The Norfolk and Western Railway, running north and south, crosses this turnpike in Berryville near the east end of Main street. The company's passenger station is 800 feet south of said crossing and its freight station 114 feet north thereof, both on the west side of the track. Immediately west of the railway tracks on the north side of the turnpike is located an electric bell, called a magneto highway alarm, which was installed and operated by the railway company. On the east side of the tracks and north of the turnpike there are a number of warehouses and other buildings along the right of way for a distance of eight or nine hundred feet, obstructing, in large measure, the view from the turnpike of a train coming from the north.

On January 29, 1919, the plaintiff's intestate, Amos Chapman, drove a five ton truck loaded with ties from the Shenandoah river to Berryville. Three little girls, daughters of his employer, who were on their way to school, were seated in the cab of the truck with him.