1 

Present: All the Justices 

RGR, LLC 

 OPINION BY 

v. Record No. 130633 CHIEF JUSTICE CYNTHIA D. KINSER 

 OCTOBER 31, 20141

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, RGR, LLC, (RGR) appeals the jury's 

verdict awarding $2.5 million to Georgia Settle (Mrs. Settle) 

for the death of her husband, Charles E. Settle, Sr. (Settle). 

We conclude that the circuit court did not err in holding that 

RGR owed a duty of reasonable care to Settle or in instructing 

the jury on that duty, and in finding that Settle was not 

contributorily negligent as a matter of law and that RGR's 

negligence was a proximate cause of the collision. We therefore 

will affirm the circuit court's judgment sustaining the jury's 

verdict. We also conclude, however, that the circuit court 

erred in calculating the offset required under Code § 8.01-35.1. 

I. FACTS AND PROCEEDINGS 

In October 2004, Settle was fatally injured when a train 

owned and operated by Norfolk Southern Corporation (Norfolk 

 1

 The Court withdrew the prior opinion rendered June 5, 

2014, reported at 288 Va. 1, 758 S.E.2d 215 (2014), after 

granting a petition for rehearing by Order dated August 1, 2014. 
2 

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.2 Because the railroad crossing was private, it was 

controlled with only "crossbuck signs." There were no stop 

signs, warning signals, or barriers. 

Adjacent to the railroad tracks, the defendant, RGR, 

operated a business offloading lumber from train cars and 

reloading it onto tractor-trailers.3

 On the date of the 

accident, RGR's lumber was 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. 

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 

 2

 The scene of the accident is shown in the photograph 

appended to this opinion. 

3

 RGR had operated its business at that location for 34 

years and was leasing the property on which its business was 

situated at the time of the accident. 
3 

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.4 As a result, Settle, according to the 

allegations, could not see the approaching train in sufficient 

time to stop and avoid the collision. 

Prior to trial, RGR filed a demurrer, arguing that Mrs. 

Settle failed to set forth facts that, if proven, would 

establish that RGR owed a duty to Settle or that it breached any 

duty owed to Settle. In support, RGR argued that Settle was a 

stranger to its business, was fatally injured on a third-party's 

property, and thus no duty arose. RGR also asserted that Mrs. 

Settle's allegations established that Settle was contributorily 

negligent as a matter of law. The circuit court overruled the 

demurrer.5

 

4

 Before trial, the claim against Norfolk Southern was 

settled, and the claims against the other two defendants were 

dismissed with prejudice. 

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. 

5

 RGR also filed a motion to limit Mrs. Settle's evidence to 

a "concerted action/joint enterprise" theory of liability, which 

the circuit court denied on the grounds that Mrs. Settle 

included allegations that RGR was jointly or individually 

liable. 
4 

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-ofway 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), 

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 
5 

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

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

The Norfolk Southern representative also testified 

regarding the right-of-way. He stated that Norfolk Southern’s 

right-of-way was property the company owned adjacent to the 

railroad tracks. According to the representative, the right-ofway "serve[d] multiple purposes[,] the most important" of which 

was safety. The representative explained that "maintain[ing] 

clear sight distance" was one of the purposes regarding safety: 

"A right-of-way allows . . . both our locomotive train crews and 

the public to safely proceed across the tracks." He further 

testified that RGR’s lumber "was not supposed to be stored in 

the right-of-way." 

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 he had never come to a complete 

stop before crossing the tracks. According to the employee, 
6 

"you couldn't see like you should" and if the lumber stacks were 

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

also stated that no one ever complained to RGR or Settle's 

employer about the lumber stacks' 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-tothree 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 stated that, "[i]n a panic," a driver will "miss [a gear] 

every time." Weston approximated that coming to a complete stop 

with a full load while traveling five miles per hour would 
7 

require about ten feet.6 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. 

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.7 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 

 

6

 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. 

7

 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. 
8 

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 

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 
9 

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 

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

Route 15 crossing. Between the Route 15 crossing and the Kapp 

Valley Way crossing, Janney stated, the engineer again blew the 

horn sequence of "two more longs, a short and a long." 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, also claimed that he blew the train's horn 

before reaching Route 15, again blew the "two longs, a short and 

a long" sequence after Route 15, continued blowing the horn 

until the moment of impact, and in fact broke the horn handle 

doing so. Street stated that he saw Settle twice before his 

truck reached the crossing, that Settle was looking straight 
10 

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 

agreed that "commercial drivers should not stop closer than 15 

feet from the rail crossing" to protect the safety of such 

drivers. 

According to White, RGR's owners visited the site 

infrequently and never instructed him or Lawson, the two 

employees responsible for the day-to-day operations of the 

facility, as to where to stack the lumber offloaded from the 

trains or how high to stack it. Lawson believed that Norfolk 

Southern's right-of-way extended only 20-25 feet on each side of 

the tracks and that RGR’s lumber stacks were not encroaching on 

the right-of-way. Lawson conceded, however, that he never 

checked to be sure about the width of the right-of-way, and one 

of RGR's owners testified that prior to the accident, RGR knew 

the right-of-way extended 30 feet from the center of the tracks. 

That owner also conceded that the lumber stacks "needlessly 
11 

cut[ ] down the visibility of a motorist" traveling on Kapp 

Valley Way. 

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

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

it owed no duty to Settle because he was not on RGR's property 

and was injured by a third party. According to RGR, Settle's 

"status" with respect to RGR's property had "never been 

established," and RGR's only duty with respect to the lumber 

stacks was owed to Norfolk Southern, not Settle. RGR also 

maintained 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, 

finding that RGR owed a duty of ordinary care and stating that 

"[t]here are too many variables that have been introduced . . . 

with regard to speed, distance, [and] times crossed" that 

rendered the question of contributory negligence one for the 

jury. 

Over RGR's objection, the circuit court instructed the jury 

that "[i]n the absence of evidence to the contrary, it is 

presumed that an owner or vendor of lands knows the area and 

boundaries of such, and whether an encumbrance is on his or her 

property or adjacent property." The court also instructed the 
12 

jury, again over RGR's objection, that "[e]very person has the 

duty to exercise ordinary care in the use and maintenance of its 

property to prevent injury or death to others." 

The jury returned a verdict for Mrs. Settle in the amount 

of $2.5 million, along with pre-judgment interest from 

October 12, 2008. RGR filed a motion to set aside the verdict, 

again raising its arguments related to duty, contributory 

negligence, and proximate cause. In the alternative, RGR 

requested a new trial or a remittitur of the verdict. The 

circuit court denied RGR's motions. 

On mutual agreement of both parties, however, the circuit 

court suspended entry of the final order to address the parties' 

disagreement on how to calculate the offset of the $500,000 

settlement Mrs. Settle obtained from Norfolk Southern, pursuant 

to Code § 8.01-35.1(A)(1). Mrs. Settle claimed that the 

provisions of Code 8.01-35.1(A)(1) require that the settlement 

amount be deducted from the sum of the $2.5 million verdict plus 

the prejudgment interest awarded by the jury. RGR, on the other 

hand, argued that the amount of the settlement between Norfolk 

Southern and Mrs. Settle should be subtracted from the $2.5 

million jury award, with prejudgment interest then calculated on 

the difference. 

The circuit court agreed with Mrs. Settle and, in a final 

order, held that the "amount recovered" under Code § 8.01-
13 

35.1(A)(1) included "both the principal amount awarded by the 

jury of $2.5 million plus the prejudgment interest also awarded 

by the jury," which totaled $3,085,205.48. The court reduced 

that sum by the amount of the settlement with Norfolk Southern, 

entered judgment against RGR in the amount of $2,585,205.48, and 

awarded "post-judgment statutory interest . . . on the principal 

verdict amount of $2,500,000.00 from" the date of the verdict 

until paid. This appeal followed. 

II. ANALYSIS 

On appeal, RGR asserts that it owed no duty to Settle and 

that the circuit court erred in instructing the jury with 

respect to the issue of duty. RGR next argues that Settle was 

contributorily negligent as a matter of law and that his 

negligence, and not its lumber stacks, was the proximate cause 

of the accident. Finally, RGR asserts that the circuit court 

erred in calculating the offset required by Code § 8.01-35.1. 

We will address the issues in that order. 

A. Duty and Jury Instructions 

RGR contends that it owed no duty to Settle as a third 

party traveling on a private road located on private property 

adjacent to the property on which it conducted its business. It 

asserts that Virginia does not recognize a duty of reasonable 

care with regard to obstructions on private property that do not 

"touch upon or invade the private road" nor a duty to protect 
14 

"mere sight lines." RGR claims that the jury instructions thus 

were erroneous because the instructions allowed the case to 

proceed on a premises liability theory. 

"[W]hether a legal duty in tort exists is a pure question 

of law" reviewed de novo on appeal. Volpe v. City of Lexington, 

281 Va. 630, 636, 708 S.E.2d 824, 827 (2011) (internal quotation 

marks omitted). Likewise, we review de novo whether a jury 

instruction accurately states the law. Hawthorne v. VanMarter, 

279 Va. 566, 586, 692 S.E.2d 226, 238 (2010). In considering 

whether an instruction was properly given, "our responsibility 

is to see that the law has been clearly stated and that the 

instructions cover all issues which the evidence fairly raises." 

Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 55, 710 

S.E.2d 736, 740 (2011) (internal quotation marks and citation 

omitted). "[A] litigant is entitled to jury instructions 

supporting his or her theory of the case if sufficient evidence 

is introduced to support that theory and if the instructions 

correctly state the law." Id. (internal quotation marks 

omitted). 

"[N]egligence is the violation of a legal duty which one 

owes to another, and where there is no legal duty there is no 

actionable negligence." Veale v. Norfolk & Western Ry. Co., 205 

Va. 822, 825, 139 S.E.2d 797, 799 (1965). "'Negligence, in law, 

involves the conception of a duty to act in a certain way toward 
15 

others, and a violation of that duty by acting otherwise.'" 

Cleveland v. Danville Traction & Power Co., 179 Va. 256, 260, 18 

S.E.2d 913, 915 (1942) (quoting Cooke v. Elk Coach Line, Inc., 

180 A. 782, 783 (Del. Super. Ct. 1935)). Thus, "[a]n action for 

negligence only lies where there has been failure to perform 

some legal duty which the defendant owes to the party injured." 

Balderson v. Robertson, 203 Va. 484, 487-88, 125 S.E.2d 180, 183 

(1962) (internal quotation marks omitted) (collecting cases). 

General negligence principles require a person to exercise 

due care to avoid injuring others. Overstreet v. Security 

Storage & Safe Deposit Co., 148 Va. 306, 317, 138 S.E. 552, 555 

(1927) (recognizing a duty "owed to mankind generally . . . not 

to do any act which a person of ordinary prudence could 

reasonably apprehend, as a natural and probable consequence 

thereof, would subject [another person] to peril"); Charles E. 

Friend, Personal Injury Law in Virginia § 1.1.1., at 2 (3rd ed. 

2003) ("There is . . . a general duty not to injure others 

[that] arises whenever [a] defendant's conduct creates a risk of 

harm to others."). The "broad common law maxim" sic utere tuo 

ut alienum non laedas requires that "one must so use his own 

rights as not to infringe upon the rights of another." Cline v. 

Dunlora South, LLC, 284 Va. 102, 107, 726 S.E.2d 14, 17 (2012). 

Recognition that "a duty of care is ordinarily owed to avoid 

conduct that creates risks of harms to others" is the majority 
16 

view of both courts and commentators. 2 Dan B. Dobbs, The Law 

of Torts § 251, at 2-3 (2d ed. 2011) ("[W]here the defendant by 

some action on his part, creates, maintains, or continues a risk 

of physical harm, the general standard or duty is the duty of 

reasonable care, that is, the duty to avoid negligent 

conduct."). 

This general duty is owed to those within reach of a 

defendant's conduct. 

[W]henever one person is by circumstances 

placed in such a position with regard to 

another . . . that if he did not use 

ordinary care and skill in his own conduct 

with regard to those circumstances, he would 

cause danger of injury to the person or the 

property of the other, a duty arises to use 

ordinary care and skill to avoid such 

injury. 

Southern States Grain Mktg. Coop. v. Garber, 205 Va. 757, 761, 

139 S.E.2d 793, 796 (1965) (quoting Standard Oil Co. v. 

Wakefield, 102 Va. 824, 832, 47 S.E. 830, 832 (1904)). 

With regard to property, the common law requires that 

"'every person [must] exercise ordinary care in the use and 

maintenance of his own property to prevent injury to others.'" 

Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957) 

(quoting Rice v. Turner, 191 Va. 601, 605, 62 S.E.2d 24, 26 
17 

(1950));8 accord Standard Oil Co., 102 Va. at 828, 47 S.E. at 831 

(recognizing the "duty of every man to so use his own property 

as not to injure the persons or property of others"). 

[The] person in possession of property . . . 

has a privilege to make use of the land for 

his own benefit[.] [B]ut . . . this 

privilege is qualified by a due regard for 

the interests of others who may be affected 

by it. The possessor's right is therefore 

bounded by principles of reasonableness, so 

as to cause no unreasonable risk of harm to 

others in the vicinity. 

W. Page Keeton, et al., Prosser & Keeton on Torts § 57, at 386 

(5th ed. 1984); accord Cline, 284 Va. at 107, 726 S.E.2d at 17 

(holding that the common law principle "sic utere tuo ut alienum 

non laedas . . . precludes use of land so as to injure the 

property of another"); Schulz v. Quintana, 576 P.2d 855, 856 

(Utah 1978) ("A landowner may use his property as he sees fit, 

subject, however, to having due regard for the safety of others 

who may be affected by it. The owner is under an obligation to 

make such reasonable use of his property that it will not cause 

unreasonable harm to others in the vicinity thereof."); see also

Justice v. CSX Trans., Inc., 908 F.2d 119, 123-24 (7th Cir. 

1990) (applying common law duty that "a person may not use his 

land in such a way as unreasonably to injure the interests of 

 8 Perlin and Rice both addressed negligence claims involving 

personal injuries inflicted by cattle that had escaped from the 

premises where they were confined. 
18 

persons not on his land - including owners of adjacent lands[,] 

other landowners and the users of public ways" to a company that 

placed obstacles blocking the view of a traveler approaching a 

railroad crossing); Lawson v. Safeway Inc., 119 Cal. Rptr. 3d 

366, 372-73 (Cal. Ct. App. 2010) (applying duty of ordinary care 

to defendant when the defendant's parked truck obstructed the 

view of motorists at an intersection); Langen v. Rushton, 360 

N.W.2d 270, 275 (Mich. Ct. App. 1984) (holding that the 

defendant had "a duty . . . to provide motorists . . . with an 

unobstructed view" as they entered traffic); Boudreaux v. Sonic 

Indus., Inc., 729 P.2d 514, 516-17 (Okla. Civ. App. 1986) 

(applying the duty of a property owner "to maintain his property 

in such a manner that . . . it does not create an unreasonable 

hazard to travelers upon the abutting roadway," to a restaurant 

whose sign obstructed the view of travelers because "it is 

immaterial whether the injury is caused by physical contact or 

by another means such as here"). 

 At common law, however, this duty did not extend to natural 

conditions existing on land as opposed to artificial conditions 

such as RGR's lumber stacks.9 Compare Cline, 284 Va. at 106, 726 

S.E.2d at 16 ("At common law, a landowner owed no duty to those 

outside the land with respect to natural conditions existing on 

 9

 No one suggests that the lumber stacks were anything other 

than an artificial condition on RGR's land and Norfolk 

Southern's right-of-way. 
19 

the land, regardless of their dangerous condition."), with

Restatement (Second) of Torts § 364 (1965) ("A possessor of land 

is subject to liability to others outside of the land for 

physical harm caused by a structure or other artificial 

condition on the land, which the possessor realizes or should 

realize will involve an unreasonable risk of such harm."). 

Likewise, an owner or possessor of land adjacent to a highway 

has no common law duty to persons traveling on the highway with 

regard to natural conditions on the land. See Cline, 284 Va. at 

109, 726 S.E.2d at 18 ("The duty owed by adjoining property 

owners is to refrain from engaging in any act that makes the 

highway more dangerous than in a state of nature or in the state 

in which it has been left.") (emphasis added); Price v. Travis, 

149 Va. 536, 542, 140 S.E. 644, 646 (1927) (observing that the 

"duty of others is to abstain from doing any act by which any 

part of the highway would become more dangerous to the traveler 

than in a state of nature, than in the state in which the 

[public entity] has left it") (emphasis added); see also

Driggers v. Locke, 913 S.W.2d 269, 272 (Ark. 1996) (holding that 

a landowner had no duty to control vegetation on his land for 

the benefit of users of an adjacent highway); Williams v. Davis, 

974 So.2d 1052, 1062 (Fla. 2007) (finding a landowner had no 

duty to motorists with regard to natural conditions contained 

wholly within the private property's boundaries); Pyne v. 
20 

Witmer, 512 N.E.2d 993, 997 (Ill. App. Ct. 1987) (refusing to 

impose duty on a landowner to remove foliage on his property so 

that motorists approaching an intersection could see other 

motorists); Krotz v. CSX Corp., 496 N.Y.S.2d 190, 191 (N.Y. App. 

Div. 1985) (finding no duty requiring a landowner to control 

vegetation on property for the benefit of users of a public 

highway). 

RGR does not dispute these common law tort principles 

regarding duty. Instead, it contends that this case erroneously 

proceeded to the jury on a theory of premises liability. On 

brief, RGR states that it "agrees this is not a premises 

liability case." It claims, however, that the circuit court 

nevertheless relied on premises liability precedent in several 

of its holdings, including whether RGR owed a duty to Settle. 

RGR misconstrues Mrs. Settle's position and the circuit 

court's holdings. In her fourth amended complaint, Mrs. Settle 

alleged that RGR, as well as the other named defendants, "owed a 

duty of reasonable due care" to Settle "in the care, 

maintenance, upkeep, [and] inspection" of both Norfolk 

Southern's right-of-way and the property upon which the lumber 

was stacked. Mrs. Settle further alleged that the defendants 

"breached their duties of reasonable care" to Settle by, among 

other things, "allowing . . . stacks of lumber to exist such 
21 

that they blocked the view of motorists approaching the Kapp 

Valley Crossing." 

Moreover, the circuit court instructed the jury that 

"[e]very person has the duty to exercise ordinary care in the 

use and maintenance of its property to prevent injury or death 

to others."10 Based on the common law principles already 

discussed with regard to duty, this instruction is a correct 

statement of the law, and the circuit court did not err in 

giving it. See Perlin, 198 Va. at 864, 96 S.E.2d at 808; 

Prosser & Keeton on Torts § 57, at 386. The instruction 

supports Mrs. Settle's theory of the case. See Bennett, 282 Va. 

at 55, 710 S.E.2d at 740. It also demonstrates that premises 

liability was not an issue and that the case was not tried on 

that basis. To suggest otherwise is simply incorrect. 

RGR also advances several other theories as to why it was 

not subject to the common law duty outlined above. Despite its 

 10 RGR also argues that the circuit court erred in giving 

the jury instruction stating that "[i]n the absence of evidence 

to the contrary, it is presumed that an owner or vendor of land 

knows the area and boundaries of such, and whether an 

encumbrance is on his or her property or adjacent property." 

RGR asserts that the instruction pertained to a premises 

liability theory for which there was no evidence. As the 

circuit court stated, however, "the issue of where the right-ofway [is] and the knowledge of the right-of-way [was] raised." 

One of RGR's owners testified that RGR was unaware of the extent 

and size of Norfolk Southern's right-of-way. This instruction 

addressed that issue and did not allow the jury to find RGR 

liable on a premises liability theory. The circuit court did 

not err in giving it. 
22 

statement on brief acknowledging that this case is not one of 

premises liability, RGR nevertheless attempts to interject 

premises liability concepts by arguing that it owed no duty to 

Settle because he "was, at most, an invited guest using a 

private roadway and a private railroad crossing on" another 

entity's property. (Emphasis added.) Regardless of Settle's 

status in relation to the owner of Kapp Valley Way, we stated in 

Dudley v. Offender Aid & Restoration of Richmond, Inc., 241 Va. 

270, 401 S.E.2d 878 (1991), that "'[i]n order for the actor to 

be negligent with respect to the other, his conduct must create 

a recognizable risk of harm to the other individually, or to a 

class of persons – as, for example, all persons within a given 

area of danger – of which the other is a member.'" Id. at 278, 

401 S.E.2d at 882-83 (quoting Restatement (Second) of Torts § 

281 cmt). "[W]henever the circumstances . . . are such that an 

ordinary prudent person could reasonably apprehend that, as a 

natural and probable consequence of his act, another person 

rightfully there will be in danger of receiving an injury, a 

duty to exercise ordinary care to prevent such injury arises." 

Overstreet, 148 Va. at 318, 138 S.E. at 555. 

The existence of this duty does not depend on proving a 

particular relationship; 

it arises from that basic and necessary 

regulation of civilization which forbids any 

person because of his own convenience, to 
23 

recklessly, heedlessly or carelessly injure 

another. Nobody is permitted by the law to 

create with impunity a stumbling block, a trap, a 

snare or a pitfall for the feet of those 

rightfully proceeding on their way. 

Louisville & Nashville R.R. Co. v. O'Neil, 119 Va. 611, 627, 89 

S.E. 862, 866 (1916) (internal quotation marks omitted); see

also Friend, Personal Injury Law in Virginia § 1.1.1., at 2 

("[T]he only 'relationship' which must exist is a sufficient 

juxtaposition of the parties in time and space to place the 

plaintiff in danger from the defendant's acts."). 

Settle was "within a given area of danger" created by the 

location of RGR's lumber stacks. The lumber was situated within 

Norfolk Southern's right-of-way and obstructed the sight line of 

motorists on Kapp Valley Way as they approached the railroad 

crossing. Dudley, 241 Va. at 278, 401 S.E.2d at 883. One of 

the purposes of the railroad's right-of-way was to maintain 

clear sight lines for motorists and the train crew. Settle was 

also "rightfully" traveling on Kapp Valley Way within feet of 

RGR's lumber stacks at the time of the accident. Overstreet, 

148 Va. at 318, 138 S.E. at 555. Thus, RGR owed a duty to 

Settle to exercise ordinary care. See id. 

RGR next argues that this Court has never "recogniz[ed] a 

duty to protect mere sight lines." RGR is correct that we have 

never found a duty of owners or possessors of land to protect 

the sight lines of motorists traveling on adjacent roadways, and 
24 

we make no such holding here. Rather, we affirm what has been 

consistently recognized: one has a duty to exercise ordinary 

care in the use and maintenance of one's property to prevent 

injury to others. See Perlin, 198 Va. at 864, 96 S.E.2d at 808. 

The negligent act in this case was RGR's obstruction of the 

sight line at the railroad crossing by stacking its lumber 

within Norfolk Southern's right-of-way, an area designed to 

maintain clear sight lines for motorists and the train crew. 

Applying the common law duty to particular factual settings, 

however, does not necessarily result in liability in all 

instances. See Boggs v. Plybon, 157 Va. 30, 38, 160 S.E. 77, 80 

(1931) ("[S]ome particular act which would be actionable 

negligence under one set of circumstances [will] give no basis 

for recovery in another."); Smith v. Lamar, 212 Va. 820, 823, 

188 S.E.2d 72, 74 (1972) ("The amount or degree of diligence and 

caution which is necessary to constitute reasonable or ordinary 

care depends on the circumstances and the particular 

surroundings of each specific case."); Dobbs, The Law of Torts § 

253, at 10 ("[J]udges must follow the reasonable care standard, 

leaving it to juries to apply the reasonable person standard to 

particular conduct."). 

Instead, the question whether under a particular set of 

facts one is liable for obstructing the sight line of a 

traveling motorist raises the issues of breach of duty for 
25 

failure to exercise ordinary care in the circumstances and 

proximate causation. Whether a duty to exercise ordinary care 

is owed does not depend on those issues and their resolution by 

the factfinder. In other words, in framing the duty question as 

whether a "duty to protect . . . sight lines" is recognized, RGR 

attempts to transform factual determinations about breach and 

proximate causation to be resolved by the factfinder into a 

legal determination made by the trial court as a matter of law. 

While "[t]he law determines the duty, . . . the jury, upon the 

evidence, determines whether the duty has been performed." 

Commonwealth v. Peterson, 286 Va. 349, 357, 749 S.E.2d 307, 311 

(2013) (internal quotation marks omitted); see Whitt v. 

Silverman, 788 So.2d 210, 221 (Fla. 2001) ("[T]he imposition of 

a duty is nothing more than a threshold requirement that if 

satisfied, merely opens the courthouse doors.") (internal 

quotation marks omitted). The law of negligence constantly 

requires juries to apply general principles of duty to 

particular factual scenarios. See Cline, 284 Va. at 113, 726 

S.E.2d at 20 (Lemons, J., dissenting) (rejecting a landowner's 

specific duty to inspect trees in favor of a "simple application 

of ordinary negligence principles [and] imposing a duty of 

reasonable care upon all landowners"). This case is no 

different. 
26 

Similarly, RGR's argument that it owed no duty to Settle 

because RGR had no "actual or constructive knowledge" that the 

lumber stacks created a dangerous condition is without merit. 

Although RGR again uses nomenclature usually associated with 

premises liability, see Culpepper v. Neff, 204 Va. 800, 804, 134 

S.E.2d 315, 318-19 (1964) ("[a]ctual or constructive knowledge 

on the part of the owner of a defect causing the injury is 

necessary to render him liable" to a business invitee), the 

proper question is one of foreseeability and pertains to what 

constitutes negligence, not to whether a duty to exercise 

ordinary care exists. 

Actionable negligence requires that 

there must be a legal duty, a breach thereof 

and a consequent injury which could have 

been reasonably foreseen by the exercise of 

reasonable care and prudence, and where 

there is no breach or violation of a legal 

duty to take care for the safety of the 

person or property of another there can be 

no actionable negligence. 

Atlantic Co. v. Morrisette, 198 Va. 332, 333, 94 S.E.2d 220, 

221-22 (1956) (collecting cases); see also Virginia Elec. & 

Power Co. v. Savoy Constr. Co., 224 Va. 36, 46, 294 S.E.2d 811, 

818 (1982) ("Foreseeability is relevant to a determination of 

proximate cause."); Maroulis v. Elliott, 207 Va. 503, 509-10, 

151 S.E.2d 339, 344 (1966) ("Liability ensues when injury 

results from a risk or hazard which may be reasonably foreseen, 
27 

although the precise injury may not be foreseen."); Limberg v. 

Lent, 206 Va. 425, 426, 143 S.E.2d 872, 873 (1965) (noting that 

"the defendant did not fail to observe a duty owed . . . if it 

was not reasonably foreseeable that the defendant's actions 

might cause injury"); Cleveland, 179 Va. at 259, 18 S.E.2d at 

915 ("[F]oreseeability of injury to one to whom duty is owed is 

of the very essence of negligence" and "[i]f injurious 

consequences are not foreseen as result of the conduct, then 

that conduct is not negligence."). 

Generally the test for negligence is whether 

the act or omission was done in the exercise 

of reasonable care. Whether reasonable care 

was exercised depends upon what a reasonably 

prudent person, with knowledge of the 

circumstances, ought to have foreseen in 

regard to the consequences of his act or 

omission. However, the precise nature of 

the consequences need not be foreseen. "It 

is enough if the act [or omission] is such 

that the party ought to have anticipated 

that it was liable to result in injury to 

others." 

Barnette v. Dickens, 205 Va. 12, 16, 135 S.E. 109, 112 (1964) 

(quoting Norfolk & W. Ry. Co. v. Whitehurst, 125 Va. 260, 264, 

99 S.E. 568, 569 (1919)). In sum, whether RGR breached its duty 

of ordinary care by stacking its lumber within Norfolk 

Southern's right-of-way because it was "reasonably foreseeable 

that [its] actions might cause injury," Limberg, 206 Va. at 426, 

143 S.E.2d at 873, must be distinguished from the question 

whether a duty existed. 
28 

In accord with these principles, the jury was instructed 

that RGR was "not required to have anticipated or foreseen the 

precise injury or death that occurred, but it is sufficient that 

a reasonably prudent person would have anticipated or foreseen 

that some injury might probably result from the negligent act." 

RGR does not challenge this instruction. 

Moreover, RGR's employee testified that the number of 

travelers using Kapp Valley Way and the railroad crossing had 

increased due to the construction project, and that the project 

had been ongoing for "quite some time." One of RGR's owners 

admitted that RGR knew the width of Norfolk Southern's right-ofway.11 In addition, numerous witnesses testified that the lumber 

stacks blocked motorists' view of the railroad tracks. Given 

this testimony, the jury was entitled to infer that RGR breached 

its duty of reasonable care because a reasonably prudent person 

ought to have foreseen the consequences of stacking the lumber 

within Norfolk Southern's right-of-way at the point where Kapp 

Valley Way crosses the railroad tracks. 

Fundamentally, RGR's position that it owed no duty to 

Settle would result in the wholesale rejection of a duty to 

exercise ordinary care in circumstances such as those here and 

would absolve one of liability for negligence no matter how 

 11 Norfolk Southern's right-of-way is also a matter of 

public record. 
29 

dangerous the conduct or foreseeable the injury. See Cleveland, 

179 Va. at 259, 18 S.E.2d at 915; Dobbs, The Law of Torts § 253, 

at 9 ("Elevating a decision about particular facts to a no-duty 

rule will . . . exclude[e] liability not only in the particular 

case but also in others that are quite different on their facts 

and may call for a different result."). We decline RGR's 

invitation to make such a ruling. Therefore, we conclude that 

the circuit court did not err in holding that RGR had "the duty 

to exercise reasonable care in the use and maintenance of its 

property to prevent injury or death to others" and in so 

instructing the jury. 

B. Contributory Negligence 

RGR next contends that the circuit court erred in refusing 

to grant its motions to strike because the evidence established, 

as a matter of law, that Settle was contributorily negligent for 

failing to look and listen for the train. As the prevailing 

party in the trial court, Mrs. Settle is entitled to have the 

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). Armed with a jury 

verdict approved by the circuit court, Mrs. Settle occupies the 

"most favored position known to the law." Bennett, 282 Va. at 

54, 710 S.E.2d at 739 (internal quotation marks omitted). The 

circuit court's judgment "is presumed to be correct, and we will 
30 

not set it aside unless the judgment is plainly wrong or without 

evidence to support it." Id. 

"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); accord Sawyer v. 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). These are questions of fact to be 

decided by the factfinder unless "reasonable minds could not 

differ about what conclusion could be drawn from the evidence." 
31 

Jenkins, 269 Va. at 388-89, 611 S.E.2d at 407 (collecting 

cases). 

On appeal, however, a defendant has a heavier burden. 

Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 170, 427 S.E.2d 

724, 729 (1993). A defendant "must show that there is no 

conflict in the evidence on contributory negligence, and that 

there is no direct and reasonable inference to be drawn from the 

evidence as a whole to sustain a conclusion that the plaintiff 

was free from contributory negligence." Id. 

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 

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

122, 132, 244 S.E.2d 781, 786-87 (1978).12 Reasonable care is 

the "degree of care a reasonably prudent person would exercise 

under the same or similar circumstances." Thomas v. Settle, 247 

Va. 15, 21, 439 S.E.2d 360, 364 (1994). "Repeatedly, we have 

 12 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." RGR does not challenge these 

instructions. 
32 

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, 245 Va. at 171, 427 S.E.2d at 730 (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). "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." Id. at 317, 1 S.E.2d at 257. 

In numerous cases involving vehicular-train collisions, we 

have considered whether a driver was contributorily negligent. 

For example, in Wright, the plaintiffs' ward was an experienced 

dump truck driver and was "thoroughly familiar" with a 

particular public railroad crossing. 245 Va. at 171, 427 S.E.2d 

at 730. The driver 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 
33 

the configuration of his truck's cab and the angle of the street 

relative to the railroad tracks. Id. According to testimony, 

however, he typically drove with his air conditioning and radio 

on in the cab. Id. at 164, 427 S.E.2d at 726. The driver was 

struck when he "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. at 171, 427 S.E.2d at 

730. 

The plaintiffs' 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 driver was 

contributorily negligent as a matter of law. Id. at 166, 427 

S.E.2d at 727. We agreed. Noting that he "was not forced to 

approach the crossing with his right window closed, and 

presumably with his air conditioning and radio operating," we 

said that the driver 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 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. Having failed to 

do so, "the only conclusion to be drawn from the whole evidence" 
34 

was that the driver "was the architect of his own misfortune." 

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

133, 244 S.E.2d at 787 (identifying the train's "continuous 

signals" and actions the decedent could have taken to avoid the 

crash). 

Similarly, we held that the decedent was contributorily 

negligent as a matter of law in Norfolk & W. Ry. Co. v. Benton, 

160 Va. 633, 169 S.E. 560 (1933). There, the decedent was 

traveling in his automobile at 10-15 miles per hour when he 

drove his vehicle onto a railroad crossing and was struck by a 

train, resulting in his death. Id. at 636, 169 S.E. at 561. 

The train was partially, but only briefly, obstructed by train 

cars standing on a side track, and "[a] clear view . . . could 

be had as the crossing was approached because one's vision of 

the train would have been unobstructed for a considerable 

distance beyond the cars" on the side track. Id. Although a 

passenger in the automobile testified that a flagman from the 

railway company waved the decedent onto the tracks, the Court 

held that such action should have indicated the proximity of the 

train, which was in plain view of the decedent. Id. at 642-43, 

169 S.E.2d at 564. The Court concluded that the plaintiff 

"fail[ed] to take any precaution for his own safety." Id. at 

642, 169 S.E.2d at 563. 
35 

In contrast, the facts and circumstances in Kimball v. 

Friend, 95 Va. 125, 27 S.E. 901 (1897), were such that 

reasonable persons could differ as to whether the decedent was 

guilty of contributory negligence. The decedent, traveling on a 

bicycle, was struck and killed by a train as he crossed railroad 

tracks that passed through a narrow cut in the land. Id. at 

136-37, 27 S.E. at 902-03. The road on which the decedent was 

traveling narrowed at the tracks, with "the view of the railroad 

track on either side of the crossing . . . practically shut off 

by the sides of the cut to a traveler . . . until he got to the 

crossing." Id. at 134, 27 S.E. at 902. The tracks in the 

direction from which the train came, however, were visible in 

several places from the road on which the decedent traveled 

before reaching the narrow cut that led to the crossing. Id. at 

137, 27 S.E. at 903. The warning gong and lights failed to 

indicate the presence of the train, and two witnesses walking in 

the same direction toward the crossing said they did not hear 

the approach of the train until it struck the decedent. Id. 

Although the decedent had a duty to exercise reasonable 

care to avoid putting himself into a position in which he could 

not escape the collision, the fact that he failed to do so was 

not conclusive evidence that he was there by 

his own negligence. He may have been there 

in consequence of the defendants' negligence 

. . . . Whether he used due care to 

ascertain if a train was approaching 
36 

depended upon inferences from facts to be 

found by the jury. The manner in which he 

approached the track; the speed at which he 

was travelling; the obstructions to a view 

of the track on which the engine was 

approaching; the negligence of the 

defendants . . . were among the facts to be 

found by the jury, and from which facts in 

connection with all the other circumstances 

and facts of the case the main fact of due 

care or negligence on the part of the 

deceased was to be found. 

Id. at 138-39, 27 S.E. at 903. 

The Court also held that the jury was entitled to "infer 

that the deceased had placed some reliance upon the fact that 

the electric gong failed to sound as the engine approached the 

crossing, and was thereby misled." Id. at 140, 27 S.E. at 903-

04. 

[W]hile 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. 

Id. at 140, 27 S.E. at 904; see also Benton, 160 Va. at 641, 169 

S.E. at 563 ("[T]he circumstances under which, and to what 

extent, [a traveler] may relax his vigilance depends on the 

surroundings."). "The question of negligence in such a case," 

the Court concluded, "is peculiarly one for the consideration of 

the jury." Kimball, 95 Va. at 140, 27 S.E. at 904; see also

Seaboard Air Line Ry. v. Abernathy, 121 Va. 173, 180, 92 S.E. 
37 

913, 916 (1917) (holding that where plaintiff's vision was 

obstructed at a crossing, it would have been error to decide "as 

a matter of law that the plaintiff should, within the space of 

less than eight feet, six inches, have been able, while his car 

was slowly moving, to look in both directions and stop in time 

to have avoided the accident"). 

In Southern Railway Co. v. Bryant, 95 Va. 212, 28 S.E. 183 

(1897), the Court noted the importance of a traveler's hearing 

faculty when his or her view is obstructed. There, the Court 

held the defendant railway company failed to give due warning of 

the train's approach to a crossing on a public highway. Id. at 

218, 28 S.E. at 185. In addition, the decedent, "on account of 

the obstruction of the view [of the tracks] by [a] hill, was 

unable to see the track . . . until he got to it." Id. at 219-

20, 28 S.E. at 185. As a result, the decedent "had to rely on 

the faculty of hearing" and without the train's horn being 

sounded, "there was . . . nothing to warn him the train was 

near." Id. at 220, 28 S.E. at 185. Under these circumstances, 

the Court held that it "cannot be inferred as a matter of law" 

that because the decedent "drove upon the track without 

stopping, [that] he did not listen." Id. at 221, 28 S.E. at 

185. 

Recognizing the general rule that a person approaching a 

railroad crossing must exercise ordinary care by looking and 
38 

listening and keeping off the track if warned of a nearby train, 

the Court, however, stated that the general rule "is not 

inflexible, nor wholly without exception." Id. at 219, 28 S.E. 

at 185. We explained that 

[i]t would be unreasonable to require a 

traveler, upon approaching a railroad 

crossing over a highway to look, when, by 

reason of the nature of the ground or other 

obstructions, he could not see; in other 

words, when compliance with the general rule 

would be impracticable or unavailing. 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. 

Id. 

Similarly, 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 quite 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 and drove slowly onto the 
39 

crossing, whereupon his truck was struck by the backward 

movement of the train that had just crossed. Id. 

The Court 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. 

"[T]he question, we think, was for the jury 

whether reasonable caution forbade his going 

forward in reliance on the sense of hearing, 

unaided by that of sight. No doubt it was 

his duty to look along the track from his 

seat, if looking would avail to warn him of 

the danger. This does not mean, however, 

that if vision was cut off by obstacles, 

there was negligence in going on, any more 

than there would have been in trusting to 

his ears if vision had been cut off by 

darkness of the night." 

Id. at 323, 1 S.E.2d at 260 (quoting Pokora v. Wabash Ry. Co., 

292 U.S. 98, 101 (1934)). The Court further stated that if a 

driver's "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. at 322, 1 

S.E.2d at 259; see Southern Ry. Co. v. Aldridge, 101 Va. 142, 

149, 43 S.E. 333, 335 (1903) ("It is true that if he had stopped 
40 

or paused the accident might not have occurred, but we do not 

feel warranted in saying that, as matter of law, his failure to 

stop made a case of contributory negligence so plain as to 

justify the court in withdrawing it from the consideration of 

the jury."). 

In the case now before us, the evidence, viewed in the 

light most favorable to Mrs. Settle, showed that trains 

typically approached from the east, opposite from the direction 

of the train that struck Settle's truck. Based on Settle's 

familiarity with the crossing due to his frequent trips to the 

construction project that had been ongoing for some time, the 

jury could have inferred that Settle too was aware of the usual 

direction in which the trains traveled at that location. 

Settle's familiarity with the crossing likewise supports the 

inference that he knew RGR's lumber stacks blocked his view of 

the railroad tracks to the right as he traveled south on Kapp 

Valley Way. Several buildings on RGR's leased property, 

according to Humphreys, also obstructed Settle's line of sight 

as he descended the hill to the crossing. In such a scenario, 

Settle was forced to rely on his hearing. See Bryant, 95 Va. at 

220, 28 S.E. at 185. 

Numerous witnesses, however, stated that they never heard 

the train's horn between the Route 15 and Kapp Valley Way 

crossings, and several affirmatively stated that the train did 
41 

not sound its horn. The train's conductor and engineer were the 

only witnesses who testified to the contrary, with the engineer 

stating that not only did he blow the horn after the Route 15 

crossing, but also sounded the horn constantly until the moment 

of impact. The jury, however, was entitled to reject the 

testimony of the conductor and engineer. See Elliott v. 

Commonwealth, 277 Va. 457, 462, 675 S.E.2d 178, 181 (2009) ("The 

credibility of witnesses and the weight accorded the evidence 

are matters solely for the fact finder."). The "same degree of 

care and caution is not required" when an open gate, silent 

gong, or absence of a train's horn invites a driver to proceed 

across railroad tracks. Campbell, 172 Va. at 321, 1 S.E.2d at 

259 (internal quotation marks omitted) (collecting authorities). 

The jury also heard that Settle's ability to hear noises outside 

the cab of his truck were diminished by the sounds inside the 

cab while driving. "In such circumstances the question . . . 

was for the jury whether reasonable caution forbade his going 

forward in reliance on the sense of hearing, unaided by that of 

sight." Id. at 323, 1 S.E.2d at 260. 

The evidence also showed that because Kapp Valley Way 

narrowed at the crossing to single-vehicle width, drivers 

typically took turns crossing the railroad tracks and waved each 

other across. As Settle descended the hill to the crossing 

prior to his truck being hit by the train, Mendosa and Bonilla 
42 

both waved their arms out their windows. Construing the 

evidence in the light most favorable to Mrs. Settle, the jury 

could have concluded that because RGR's lumber stacks impaired 

Settle's ability to see the approaching train, he viewed 

Mendosa's and Bonilla's waving as an indication that he could 

proceed across the railroad tracks. 

Unlike the plaintiffs in Wright and Greenfield, reasonable 

care did not require Settle to undertake any particular action 

to avoid the collision. See Wright, 245 Va. at 171-72, 427 

S.E.2d at 730 (identifying numerous acts the decedent could have 

taken to avoid causing the accident); Greenfield, 219 Va. at 

133, 244 S.E.2d at 787 (same). RGR argues, however, that 

Settle's failure to look when he crossed the railroad tracks 

conclusively establishes his contributory negligence. Although 

the train's conductor and engineer both testified that Settle 

was looking straight ahead, their accounts are inconsistent as 

to whether they saw Settle as soon as he emerged from behind the 

lumber stacks or as he entered the crossing. That Settle was 

looking straight ahead as he entered the crossing does not speak 

to whether he looked as he emerged from behind the lumber 

stacks. 

More importantly, Settle's duty to look and listen cannot 

be divorced from his actions as he approached the crossing and 

the surrounding circumstances. The witnesses agreed that Settle 
43 

was traveling slowly, no more than five miles per hour, as he 

approached the railroad crossing. At the point that Settle 

could see the train after emerging from behind the lumber 

stacks, the front of his truck would have been approximately 

12.5 feet from the edge of the rails. If Settle was traveling 

at 5 miles per hour, or 7.33 feet per second, and had the normal 

human reaction time of 1.5 seconds, of which the circuit court 

took judicial notice, Settle's truck would have traveled 11 feet 

in the time it took him to become aware of the train and apply 

the truck's brakes. With the weight of his truck, it would have 

taken an additional 10 feet to stop the truck once he applied 

the brakes, carrying him well past the limited space in which he 

had to stop before reaching the rails. 

As in Bryant, "[i]t cannot be inferred as a matter of law . 

. . that because [Settle] drove upon the track without stopping, 

he did not [look]." 95 Va. at 221, 28 S.E. at 185. But even if 

he in fact did not look, that failure was not contributory 

negligence as a matter of law because the jury could have 

inferred that, based on the circumstances, looking would have 

been futile due to the location of RGR's lumber stacks within 

Norfolk Southern's right-of-way. Thus, RGR's contention that 

Settle is guilty of contributory negligence as a matter of law 

is essentially an argument that he was legally required to stop 

in order to look and listen. But this has never been the law. 
44 

It has been said in numerous cases that the 

railroad track itself was a signal of 

danger, and imposed upon one approaching it 

the duty to look and listen, but it has in 

no case been held that it was his duty to 

stop in order to look and listen, or that it 

was his duty when in a vehicle to get out in 

order to look and listen. 

Aldridge, 101 Va. at 146, 43 S.E. at 334. No doubt if Settle 

had stopped or paused, the accident might not have occurred. 

But as in Aldridge, "we do not feel warranted in saying that, as 

[a] matter of law, his failure to stop made a case of 

contributory negligence so plain as to justify the court in 

withdrawing it from the consideration of the jury." Id. at 149, 

43 S.E. at 335 (collecting cases). 

Furthermore, stopping in order to look and listen would 

have placed Settle in peril from a train approaching from the 

east, the opposite direction from which the train approached 

when it struck his truck. As Settle approached the crossing, 

his sightline to the east was 600 feet, a distance covered in 

only nine seconds by a train traveling 45 miles per hour, the 

speed of the train in this case. Settle's truck was 30 feet 

long, the lumber pile was 12.5 feet from the railroad tracks, 

and the track itself was five feet wide. According to Weston, 

Settle's truck accelerated from a standstill at about 1-2 miles 

per hour, a speed incapable of traversing the 47.5 foot distance 

to clear the tracks and avoid a collision with a train 
45 

approaching from the east, the direction from which most trains 

traveled at that crossing. 

Whether Settle, as a matter of law, failed to exercise 

reasonable care under the circumstances, requires "that there 

[be] no conflict in the evidence on contributory negligence, and 

that there [be] no direct and reasonable inference to be drawn 

from the evidence as a whole to sustain a conclusion that 

[Settle] was free from contributory negligence." Wright, 245 

Va. at 170, 427 S.E.2d at 729. Contrary to RGR's argument, 

there was indeed conflicting evidence pertaining to contributory 

negligence, and it was for the jury to determine the credibility 

of the witnesses and to decide which inferences to draw from the 

facts. Settle'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." Campbell, 172 Va. at 319, 1 S.E.2d at 258; Jenkins, 

269 Va. at 389, 611 S.E.2d at 407 (contributory negligence is an 

issue of law "only when reasonable minds could not differ about 

what conclusion could be drawn from the evidence"). 

In conclusion, we reiterate what the Court said many years 

ago in Kimball. Settle had a duty to exercise reasonable care 

to avoid putting himself into a position in which he could not 
46 

escape the collision. Nevertheless, the fact that he failed to 

avoid the collision is 

not conclusive evidence that he was there by 

his own negligence. He may have been there 

in consequence of the defendants' negligence 

. . . . Whether he used due care to 

ascertain if a train was approaching 

depended upon inferences from facts to be 

found by the jury. The manner in which he 

approached the track; the speed at which he 

was travelling; the obstructions to a view 

of the track on which the engine was 

approaching; [and] the negligence of the 

defendants . . . were among the facts to be 

found by the jury. 

95 Va. at 138-39, 27 S.E. at 903. 

Therefore, we conclude that the circuit court did not err 

in refusing to find Settle contributorily negligent as a matter 

of law. The court's judgment on this issue was not "plainly 

wrong or without evidence to support it." Code § 8.01-680. 

C. Proximate Causation 

RGR argues that its lumber stacks were not the proximate 

cause of the collision between Settle's truck and the train. 

RGR contends, instead, that if Settle had exercised the 

necessary diligence and care when approaching the railroad 

crossing, the collision would not have occurred. 

"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." Ford Motor Co. v. 
47 

Boomer, 285 Va. 141, 150, 736 S.E.2d 724, 728 (2013). 

Generally, the issue of proximate causation is a question of 

fact to be resolved by a jury. Jenkins v. Payne, 251 Va. 122, 

128, 465 S.E.2d 795, 799 (1996). However, when reasonable 

people cannot differ, the issue becomes a question of law for 

the court to decide. Id. 

Based on the facts already set forth, the jury was entitled 

to infer that without the sight obstruction created by the 

location and height of the lumber stacks, Settle would have been 

able to see the approaching train as he traveled toward the 

crossing. In other words, if the lumber stacks had not been 

situated as they were on the day of the accident, within Norfolk 

Southern's right-of-way that was designed to maintain clear 

sight lines for motorists and the train crew, Settle would have 

been in position to look for an approaching train "'at a time 

and place'" when looking would have been effective. Wright, 245 

Va. at 171, 427 S.E.2d at 730 (quoting Epling, 189 Va. at 557, 

53 S.E.2d at 820). 

Contrary to RGR's argument, our decision in Sugarland Run 

Homeowners Association v. Halfmann, 260 Va. 366, 535 S.E.2d 469 

(2000), is distinguishable and not dispositive on the issue of 

proximate causation. There, a vehicle struck an eight-year old 

boy as he rode his bicycle from a private pathway onto a public 

street. Id. at 370-71, 535 S.E.2d at 471-72. The issue on 
48 

appeal was whether the alleged defects in the design of the 

pathway and its intersection with the public street were a 

proximate cause of the accident. Id. at 371, 535 S.E.2d at 472. 

Unlike the case before us, the intersection and public street 

were "clearly visible" to anyone traveling on the pathway, and 

the case was "not one where [the boy] had to ride his bicycle 

into the edge of [the street] and look around [certain 

obstacles] in order to determine whether any vehicle was 

approaching." Id. at 373-74, 535 S.E.2d at 473. 

In resolving the question of proximate causation, "'[e]ach 

case necessarily must be decided upon its own facts and 

circumstances.'" Banks v. City of Richmond, 232 Va. 130, 135, 

348 S.E.2d 280, 283 (1986) (quoting Huffman v. Sorenson, 194 Va. 

932, 937, 76 S.E.2d 183, 187 (1953)). The evidence in this case 

is sufficient to support the conclusion that Settle's view of 

the approaching train was obstructed by the lumber stacks and 

that the location of the lumber stacks was therefore a proximate 

cause of the collision. We cannot say as a matter of law that 

reasonable people could not differ on this issue. Jenkins, 251 

Va. at 128, 465 S.E.2d at 799. Thus, the circuit court did not 

err in refusing to grant RGR's motions to strike and set aside 

the verdict on the issue of proximate causation. 

D. Offset of Settlement Amount 

Finally, RGR challenges the circuit court's decision to 
49 

calculate the offset under Code § 8.01-35.1 by adding the 

prejudgment interest awarded by the jury to the $2.5 million 

award before deducting the $500,000 settlement between Mrs. 

Settle and Norfolk Southern. RGR argues that in Upper Occoquan 

Sewage Authority v. Blake Construction Company, 275 Va. 41, 655 

S.E.2d 10 (2008), we held that the phrase "principal sum 

awarded" as used in Code § 8.01-382 does not include prejudgment 

interest and that post-judgment interest therefore may not 

accrue on prejudgment interest. RGR asserts that we should now 

construe Code § 8.01-35.1 "in harmony" with Code § 8.01-382 and 

prevent a double recovery by similarly limiting the phrase 

"amount recovered" found in Code § 8.01-35.1 to include only the 

principal amount awarded, in this case the jury award of $2.5 

million.13

In response, Mrs. Settle argues that the phrase "amount 

recovered" in Code § 8.01-35.1 "unmistakeably" means the amount 

of damages awarded plus any prejudgment interest. This is so, 

according to Mrs. Settle, because prejudgment interest is 

 13 Part of RGR's argument is based on the false premise that 

the circuit court imposed post-judgment interest on the combined 

amount of the principal award and the prejudgment interest. 

That assertion is incorrect. The circuit court expressly stated 

that post-judgment interest was awarded solely on the principal 

of $2.5 million. See Upper Occoquan, 275 Va. at 67, 655 S.E.2d 

at 25 (holding that "the 'principal sum awarded' as contemplated 

by Code § 8.01-382 is that element of the plaintiff's damages 

that compensates the plaintiff for the actual harm sustained, 

but not any prejudgment interest on those damages"). 
50 

"normally designed to make the plaintiff whole and is part of 

the actual damages sought to be recovered." Shepard v. Capitol 

Foundry of Va., 262 Va. 715, 722, 554 S.E.2d 72, 76 (2001) 

(internal quotation marks omitted).14 Thus, she asserts that the 

term "amount recovered" cannot be interpreted to mean only the 

"principal sum awarded" as used in Code § 8.01-382. 

The interpretation of these statutes is a pure question of 

law reviewed de novo. Torloni v. Commonwealth, 274 Va. 261, 

267, 645 S.E.2d 487, 490 (2007). When a statute is clear and 

unambiguous, we apply its plain meaning. Id. 

Code § 8.01-35.1(A)(1) states that 

[w]hen a release or a covenant not to sue is 

given in good faith to one of two or more 

persons liable for the same injury to a 

person or property, or the same wrongful 

death[,] [i]t shall not discharge any other 

person from liability for the injury, 

property damage or wrongful death unless its 

terms so provide; but any amount recovered

against the other person or any one of them 

shall be reduced by any amount stipulated by 

the covenant or the release, or in the 

amount of the consideration paid for it, 

whichever is the greater. 

(Emphasis added.) We have previously interpreted the "clear and 

unambiguous language of Code § 8.01-35.1" to effectuate three 

 14 In contrast to prejudgment interest, "'post-judgment 

interest is not an element of damages, but is a statutory award 

for delay in the payment of money actually due.'" Upper 

Occoquan, 275 Va. at 63-64, 655 S.E.2d at 23 (quoting Dairyland 

Ins. Co. v. Douthat, 248 Va. 627, 631-32, 449 S.E.2d 799, 801 

(1994)). 
51 

primary purposes: "preserv[ing] the right of action against the 

non-settling tortfeasor, provid[ing] that 'any amount recovered' 

from the non-settling tortfeasor must 'be reduced' by the amount 

received from the settling tortfeasor, and require[ing] the 

court to consider the amount paid by the settling tortfeasor in 

determining the amount for which judgment should be entered." 

Torloni, 274 Va. at 267-68, 645 S.E.2d at 491. 

In relevant part, Code § 8.01-382 states that "[i]n any . . 

. action at law . . . the final order, verdict of the jury, or 

if no jury the judgment . . . of the court, may provide for 

interest on any principal sum awarded." (Emphasis added.) As 

RGR argues, we have held that the phrase "principal sum awarded" 

means "that element of the plaintiff's damages that compensates 

the plaintiff for the actual harm sustained, but not any 

prejudgment interest on those damages that the trier of fact 

might also award." Upper Occoquan, 275 Va. at 67, 655 S.E.2d at 

25. 

The two statutes obviously use different terms, i.e., "any 

amount recovered" and "principal sum awarded," but the two terms 

are not in the same legislative act15 and the two statutes, Code 

§§ 8.01-35.1 and -382, address different subjects. Cf. Zinone 

v. Lee's Crossing Homeowners Ass'n, 282 Va. 330, 337, 714 S.E.2d 

 15 See 1979 Acts ch. 697 and 1964 Acts. ch. 219, 

respectively. 
52 

922, 925 (2011) ("[W]hen the General Assembly has used specific 

language in one instance, but omits that language or uses 

different language when addressing a similar subject elsewhere 

in the Code, we must presume that the difference in the choice 

of language was intentional."); Industrial Dev. Auth. of the 

City of Roanoke v. Board of Supervisors, 263 Va. 349, 353, 559 

S.E.2d 621, 623 (2002) ("When the General Assembly uses two 

different terms in the same act, those terms are presumed to 

have distinct and different meanings."). 

In construing the statutes, we conclude that the purposes 

underlying Code § 8.01-35.1 require that the $500,000 settlement 

amount be subtracted from the $2.5 million damage award before 

calculating the prejudgment interest also awarded by the jury. 

Code § 8.01-35.1 apportions liability among joint tortfeasors 

when one tortfeasor settles with a plaintiff and another one 

does not. By requiring that the "amount recovered" against a 

non-settling tortfeasor be reduced by the amount stipulated in 

the covenant or release, the General Assembly clearly intended 

that joint tortfeasors share the cost of liability for the same 

damage caused by their tortious conduct. Sharing this cost 

entitles the non-settling tortfeasor to an offset of any 

settlement between the settling tortfeasor and the plaintiff. 

To construe § 8.01-35.1 as the circuit court did negates that 

benefit by requiring the non-settling tortfeasor to pay interest 
53 

on the offset amount, i.e., money that tortfeasor does not owe. 

In other words, the circuit court required RGR to pay interest 

on the $500,000 paid by Norfolk Southern in settlement with Mrs. 

Settle. In our view, that method of calculating the offset does 

not effectuate the purposes of Code § 8.01-35.1. 

We therefore conclude that the circuit court erred in its 

determination of the total sum from which the settlement amount 

would be deducted. 

III. CONCLUSION 

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

judgment except with regard to its calculation of the offset 

pursuant to Code § 8.01-35.1. On that issue, we will reverse 

the circuit court's judgment and remand for further proceedings 

consistent with this opinion. 

Affirmed in part, 

reversed in part, 

 and remanded. 
54 
55 

JUSTICE McCLANAHAN, with whom JUSTICE LEMONS and JUSTICE GOODWYN 

join, dissenting. 

 I dissent from the Court's judgment because I would hold 

that RGR owed no legal duty to Settle under Virginia law as it 

existed before today. Instead of analyzing the specific duty 

RGR owed to Settle in accordance with our prior decisions 

carefully defining and limiting the duty owed in negligence 

cases, the Court imposes an abstract duty to mankind generally, 

based on general maxims. In my view, this newly-created, everpresent duty overturns decades of entrenched and long-accepted 

Virginia law, requires owners of property and occupants of land 

to use their property with due care given the whole world in all 

instances, and effectively removes duty as an element of all 

property and land-use negligence actions. 

 In addition to my disagreement with the Court's holding on 

the duty owed by RGR to Settle, I believe that Settle was 

contributorily negligent as a matter of law. 

 I. Duty Owed by RGR to Settle Under Virginia Precedent 

 Application of established Virginia precedent does not 

support the recognition of a duty owed by RGR to Settle. 

At the time of the accident, Settle was traveling on Kapp 

Valley Way, a private road located on the premises owned by Wolf 
56 

Realty, which lay adjacent to the premises occupied by RGR.1 

Norfolk Southern allowed Wolf Realty's private road to cross its 

right-of-way and tracks. Mrs. Settle claims that the lumber 

stack located on RGR's premises and the railroad's right-of-way 

property obstructed Settle's view of Norfolk Southern's 

eastbound train as he approached the railroad crossing. 

 RGR operated a business offloading lumber from traincars 

and loading it onto tractor trailers. Norfolk Southern was 

aware of the lumber that was offloaded from its trains, and that 

its right-of-way was used for that purpose. In her complaint, 

Mrs. Settle alleged that Norfolk Southern was fully aware of the 

sight obstructions at Kapp Valley Crossing created by RGR's 

stacked lumber. Mrs. Settle also alleged that "Norfolk Southern 

employees also conducted mandatory inspections of the track at 

Kapp Valley Crossing twice per week for a period of at least 

four months during which they could not help but observe the 

sight obstruction created by the lumber stacked" on Norfolk 

Southern's property. The railroad's right-of-way adjoining Kapp 

Valley Way was not physically designated, and the railroad does 

 1

 Wolf Realty owned the land along the south side of the 

railroad tracks on both sides of Kapp Valley Way. Wolf Realty 

also owned the land on both sides of Kapp Valley Way along the 

north side of the railroad tracks. 

On the north side of the tracks, Wolf Realty's land was bordered 

on the west by the parcel of land owned by Rose Investments and 

leased by RGR. 
57 

not have a standard right-of-way width for a private railroad 

crossing. An employee of Norfolk Southern testified that he had 

inspected Norfolk Southern's property regularly, had observed 

RGR's lumber and was not concerned with its placement. He 

further testified that he had observed the lumber prior to the 

accident and it did not cause him any concern for the motoring 

public at the crossing. 

As indicated by the majority, in her fourth amended 

complaint, Mrs. Settle alleged that RGR, as well as the other 

named defendants, "owed a duty of reasonable due care" to Settle 

"in the care, maintenance, upkeep [and] inspection" of both 

Norfolk Southern's right-of-way and the property upon which the 

lumber was stacked. According to the complaint, that duty of 

care included, but was not limited to, "keeping them [sic] 

premises free from defects, dangerous conditions, and 

obstructions." Mrs. Settle further alleged that the defendants 

"breached their duties of reasonable care . . . by failing to 

inspect, upkeep and maintain the property," and in so doing, 

among other things, "allowing . . . stacks of lumber to exist 

such that they block the view of motorists approaching the Kapp 

Valley Crossing." 

Because Mrs. Settle asserts that RGR owed a duty of 

reasonable care to keep its "premises free from defects, 

dangerous conditions, and obstructions," the issue of duty 
58 

necessarily implicates the liability of RGR for conditions 

existing on its land to persons using the private road located 

on Wolf Realty's land. Although RGR's lumber pile extended 

seven feet onto Norfolk Southern's property, Mrs. Settle 

contends and reiterated during oral argument that under her 

theory of the case, an occupant of land could be potentially 

liable for a sight obstruction existing solely on its land, and 

that RGR could be held liable for the obstruction created by its 

lumber without regard to its occupancy of the premises where the 

lumber was placed. Thus, the dispositive issue in this appeal 

is whether owners and occupants of land have a legal duty to 

maintain their property and that of adjoining landowners so as 

to refrain from obstructing the view of drivers on adjacent 

land.2

 2

 Determining this issue is not "[e]levating a decision 

about particular facts to a no-duty rule" or "attempt[ing] to 

transform factual determinations about breach and proximate 

causation to be resolved by the factfinder into a legal 

determination" as the majority suggests. The "no-duty" rule is 

properly invoked "when all cases they cover fall substantially 

within the reason that frees the defendant of responsibility for 

his fault." 2 Dan B. Dobbs, The Law of Torts § 253 at 9 (2d ed. 

2011). Therefore, just as this Court has properly determined 

whether owners or occupants of land owe a duty to protect 

travelers on an adjoining public roadway from natural conditions 

on their land, see Cline v. Dunlora South, LLC, 284 Va. 102, 

110, 726 S.E.2d 14, 18 (2012), it is appropriate to determine 

whether owners or occupants of land owe a duty to maintain 

sightlines on their land for travelers on adjacent private 

lands. 
59 

Common law imposes a duty of inspection, maintenance and 

upkeep of property on the individual who possesses the property. 

See Volpe v. City of Lexington, 281 Va. 630, 636, 708 S.E.2d 

824, 827 (2011) ("In Virginia, a landowner owes an invitee 'the 

duty of using ordinary care to maintain its premises in a 

reasonably safe condition and to warn . . . of any hidden 

dangers.'") (citation omitted); see also Winn-Dixie Stores, Inc. 

v. Parker, 240 Va. 180, 182, 396 S.E.2d 649, 650 (1990) 

(describing the duty to an invitee as a duty to have the 

premises in a reasonably safe condition). There is no common 

law duty imposed upon a neighbor concerning the maintenance 

and/or inspection and upkeep of adjoining property. Thus, 

Norfolk Southern may be responsible for any alleged failure to 

maintain its right-of-way and any duty it owes to Settle because 

of its agreement which allowed Kapp Valley Way to cross its 

property and tracks. Likewise, RGR may be responsible for the 

maintenance and upkeep of its property to the extent it owes a 

duty to a traveler on an adjoining roadway, such as Mr. Settle. 

We have not previously recognized a duty owed by an owner 

or occupant of land to maintain the premises so as not to 

obstruct the view of an individual using a private road on 

adjacent premises. With regard to premises abutting a public 

roadway, we have held that occupants of land owe a duty to 

travelers of the roadway to exercise ordinary care to prevent 
60 

artificial conditions originating from the premises from 

escaping the boundaries of land onto the roadway. The source of 

this duty springs from the right of travelers to use those 

portions of roadways "which [have] been dedicated to . . . 

public travel." Price v. Travis, 149 Va. 536, 542, 140 S.E. 

644, 646 (1927) (quoting Appalachian Power Co. v. Wilson, 142 

Va. 468, 473 129 S.E. 277, 278 (1925)). This principle dictates 

that "[n]o private person has a right to place any obstruction 

which interferes with this right on any part of the highway 

within its exterior limits." Id. (quoting Dickey v. Maine 

Telegraph Co., 46 Me. 483, 485 (1859)) (emphasis added). Thus, 

the duty to travelers on a public roadway exists only with 

regard to conditions that encroach upon the roadway itself.3

For example, in Price, we noted two specific instances in 

which an occupant of land might be liable for artificial 

conditions affecting a public road. First, we stated that an 

owner or occupant of land may be liable for "build[ing] such 

things under the surface of the sidewalk or street, as areaways, 

hatchways, coal holes, etc., that are inherently dangerous 

unless properly protected by safe guards and covers; that the 

owner must at all times maintain in such condition as to insure 

the safety of travelers upon the street." 149 Va. at 543, 140 

 3

 A landowner has no duty "to protect travelers on an 

adjoining public roadway from natural conditions on his or her 

land." Cline, 284 Va. at 110, 726 S.E.2d at 18. 
61 

S.E. at 646. Second, we noted that an owner or occupant of land 

may face liability for suspending objects "over or near to the 

street - such as awnings, poles, cornices, window shutters, etc. 

- that falling onto a street or sidewalk might thereby injure a 

traveler." Id. Similarly, we have held that owners or 

occupants of land have a duty to exercise ordinary care in 

keeping domestic animals off public highways. Stout v. 

Bartholomew, 261 Va. 547, 557, 544 S.E.2d 653, 658 (2001); 

Wilkins v. Sibley, 205 Va. 171, 173, 135 S.E.2d 765, 766 (1964); 

Rice v. Turner, 191 Va. 601, 605, 62 S.E.2d 24, 26 (1950).4

 4

 Outside the context of public roadways, our precedent 

likewise does not support the imposition of a duty owed by RGR 

to Settle. We have recognized several situations in which a 

landowner or possessor of land has a duty to protect against 

injury to property on adjacent land. However, in each case, the 

condition at issue physically intruded upon the adjoining parcel 

that was harmed. See e.g., Fancher v. Fagella, 274 Va. 549, 

555-56, 650 S.E.2d 519, 522 (2007) (holding that landowners owe 

a duty to protect against actual or imminent harm to property 

caused by encroaching branches or roots); Third Buckingham 

Community, Inc. v. Anderson, 178 Va. 478, 486, 17 S.E.2d 433, 

436 (1941) (holding that an "owner of land cannot collect . . . 

water into an artificial channel or volume and pour it upon the 

land of another, to his injury") (internal quotation marks 

omitted); Akers v. Mathieson Alkali Works, 151 Va. 1, 17-18, 144 

S.E. 492, 495 (1928) (holding that a landowner has a duty to 

prevent injurious substances from escaping from its premises and 

damaging the property of another); Collins v. George, 102 Va. 

509, 516, 46 S.E. 684, 686 (1904) (holding that "persons in the 

lawful use of fire" owe a duty of ordinary care to prevent it 

from spreading and injuring the property of others). The lumber 

stack located on RGR's premises did not encroach upon Wolf 

Realty's premises or Kapp Valley Way. 
62 

Our precedent establishes, therefore, that the duty owed by 

owners and occupants of land to travelers on abutting public 

roadways derives from the right of travelers to use that portion 

of the highway that has been dedicated to public travel and 

extends only to artificial conditions intruding on the exterior 

limits of the roadway. We have never recognized that an owner 

or occupant of land has a duty to protect travelers on public 

roadways from potential dangers caused by artificial conditions 

wholly contained outside the exterior limits of the roadway, 

including artificial conditions on adjacent land that may 

obstruct a traveler's view. Thus, even if we were to recognize 

that RGR owed the same duty of care to Settle, a traveler on a 

private road located on private property, that it would owe to a 

traveler on an abutting public highway, our precedent does not 

support the existence of a duty owed by RGR to maintain its 

premises so as to keep it free of sight obstructions for the 

users of Kapp Valley Way. 

In fact, I believe it is unreasonable to impose a burden 

upon landowners to maintain sightlines for private roads on 

neighboring properties. Such a burden would place landowners at 

the mercy of the neighbor's choice of where to locate any such 

private roads and require landowners to calculate sightlines for 

any activity undertaken whether it involves structures, crops, 

or foliage. 
63 

This view is in accord with that of numerous state courts that 

have refused to impose such a duty even with regard to public 

rights-of-way. See, e.g., Coburn v. City of Tucson, 691 P.2d 

1078, 1080-81 (Ariz. 1984) (reaffirming principle that common 

law does not place the possessor land abutting public highways 

under any obligation to use or refrain from using his land so as 

to protect members of the traveling public on abutting streets); 

Rodgers v. Ray, 457 P.2d 281, 283-84 (Ariz. App. 1969) (no duty 

owed by owner or possessor of land abutting public highway to 

refrain from using land so as to obstruct view for those using 

highway); Driggers v. Locke, 913 S.W.2d 269, 271-74 (Ark. 

1996)(no duty owed by landowner to maintain holly bushes so as 

not to obscure vision of motorists); Williams v. Davis, 974 

So.2d 1052, 1062-63 (Fla. 2007) (no duty owed by landowner to 

motorists on abutting roadways as to maintenance of foliage 

unless it extends into the public right-of-way); Adame v. Munoz, 

678 N.E.2d 26 (Ill. App. Ct. 1997) (no duty owed by landowners 

to maintain property so as not to obstruct view of travelers on 

adjacent highway); Shaw v. Soo Line Railroad Co., 463 N.W.2d 51, 

55-56 (Iowa 1990) (private landowner and its business invitee 

owed no duty to motorists to guard against risk of harm from 

obstructed visibility); Bohm v. Racette, 236 P. 811, 812 (Kan. 

1925) (no duty owed by landowner to refrain from maintaining 

hedges that obstruct view of motorists); Krotz v. CSX Corp., 496 
64 

N.Y.S.2d 190, 191 (N.Y. App. Div. 1985) (no common-law duty 

imposed upon landowner to control vegetation for benefit of 

users of a public highway).5

The majority seemingly acknowledges that there is no duty 

in Virginia of owners or possessors of land to protect sight 

 5

 Apparently suggesting that there would be no duty if the 

obstruction to visibility was "natural" as opposed to 

"artificial," the majority cites to decisions from other state 

courts, including several cited herein, in which the courts 

found no duty to users of adjacent highways when the condition 

was "vegetation" or "foliage." However, vegetation and foliage 

are artificial conditions when planted or maintained by an 

individual. See Fancher, 274 Va. at 554, 650 S.E.2d at 521. 

More importantly, in the cases cited by the majority, the 

courts' holdings were based on the fact that the alleged 

obstruction did not encroach upon the highway and not upon any 

distinction between natural and artificial conditions. See 

Driggers, 913 S.W.2d at 272 (court's holding that landowner owed 

no duty maintain holly bushes so as not to obscure vision of 

motorists based on its prior holding in Ben M. Hogan & Co. v. 

Krug, 351 S.W.2d 451, 456 (Ark. 1961), ruling that owner owed no 

duty to motorist not to erect a gravel pile that obstructed 

motorist's view); Williams, 974 So.2d at 1062 (court noting it 

has rejected a rule of no liability for natural conditions and 

explaining that the determinative factor is whether the 

condition intrudes upon the public right-of-way); Pyne v. 

Witmer, 512 N.E.2d 993, 997 (Ill. App. Ct. 1987) (court's 

refusal to impose duty based on principle summarized in Adame, 

678 N.E.2d at 29 that "[t]here is simply no duty in Illinois on 

the part of landowners to maintain their property in such a way 

that it does not obstruct the view of travelers on an adjacent 

highway, and this refusal to find such a duty applies even where 

the obstruction is an artificial condition."); Krotz v. CSX 

Corp., 496 N.Y.S.2d at 191 (court's ruling based on holding in 

Hayes v. Malkan, 258 N.E.2d 695, 697 (N.Y. 1970), that private 

landowners owe no duty to protect users of public ways from 

obstructing objects located on such private property, which 

holding was also applied to a fence that obstructed the view of 

users of public right-of-way in Echorst v. Kaim, 732 N.Y.S.2d 

285, 287 (N.Y. App. Div. 2001)). 
65 

lines of motorists traveling on an adjacent roadway. However, 

the majority extends Virginia law to impose such a duty upon a 

person lawfully placing property on the premises of another with 

the acquiescence of the owner of the premises. Any duty Norfolk 

Southern may have owed to Settle because of the permission it 

gave the users of the private road to cross its right-of-way and 

tracks would not have been transferred to RGR, nor could it be 

without RGR receiving some notice of its existence. To the 

extent there was a duty to keep Norfolk Southern's property 

clear to protect travelers on an adjacent private roadway, any 

such duty could only, if at all, be owed to Settle by Norfolk 

Southern. To the extent RGR's lumber was on Norfolk Southern's 

property by seven feet, it therefore could not have activated an 

additional duty owed by RGR to a traveler on the private 

roadway. The circuit court should have granted RGR's motion to 

strike, as it concerns the alleged failure to maintain, inspect 

and keep Norfolk Southern's right-of-way. RGR did not owe a 

duty to Mr. Settle to care for, maintain, keep or inspect 

Norfolk Southern's property. 

 II. Majority's Adoption of Broad Maxim as Duty 

The majority opinion, in essence, allows one who fails to 

prove a duty was owed to him or her to assert a duty owed by a 

defendant because of the "due care owed to mankind generally." 

Overstreet v. Security Storage & Safe Deposit Co., 148 Va. 306, 
66 

317, 138 S.E. 552, 555 (1927). This is a sea change in Virginia 

jurisprudence that will have wide-ranging ramifications in 

Virginia tort law and expose practically every individual sued 

for a tort to have a fact finder determine if the general duty 

to mankind was breached. 

The majority holds that RGR owed a legal duty to Settle 

because "[g]eneral negligence principles require a person to 

exercise due care to avoid injuring others" and "exercise 

ordinary care in the use and maintenance of [one's] property to 

prevent injury to others." Therefore, the majority has 

established a general duty not to be negligent as the specific 

duty owed in property and land-use negligence actions. 

 At its outset, this reasoning is flawed because it adopts a 

broad maxim as the specific duty. Such general maxims certainly 

underlie our analysis of whether a specific duty is owed in a 

given case, but a general maxim does not constitute the duty a 

particular defendant owes to a particular plaintiff. For 

example, in Rice, 191 Va. at 605, 62 S.E.2d at 26, relied upon 

by the majority, we acknowledged the general duty upon persons 

"to exercise ordinary care in the use and maintenance of [one's] 

own property to prevent injury to others." The jury instruction 

actually approved by the Court, though, was a specific duty 

tailored to the facts of that case and to a specific class of 

persons. Id. at 605-06, 62 S.E.2d at 26 ("We find no error in 
67 

the ruling of the trial court, instructing the jury that it was 

the duty of defendant to exercise ordinary care to prevent his 

cow from running at large beyond the boundaries of his own 

land.").6

In this case, the circuit court instructed the jury that 

"[e]very person has the duty to exercise ordinary care in the 

use and maintenance of its property to prevent injury or death 

to others." The instruction may be correct as a general 

statement of the law, but it is not a correct instruction 

concerning a case in which the allegation of negligence is a 

failure to maintain a premises so as to prevent injury to one 

traveling on a roadway. A review of the cases cited to support 

the jury instruction indicate that they are cases in which the 

use and maintenance of the properties involved was such that 

 6

 The majority also cites to Schulz v. Quintana, 576 P.2d 

855, 856 (Utah 1978), for the court's recitation of the 

obligation of a landowner "to make such reasonable use of his 

property that it will not cause unreasonable harm to others in 

the vicinity thereof." Yet the court in Schulz held that the 

landowner owed no duty to the plaintiff who was traveling along 

a highway when he stopped his car, entered the defendant's land, 

and tripped and fell on a wooden stake. After discussing 

specific duties that landowners owed to users of abutting 

highways including those who may stray a few feet off course, 

the court ruled there was no duty owed by the landowner to the 

plaintiff since he ceased being a traveler on a highway and 

became a trespasser. Id. at 856-57. 
68 

some dangerous instrumentality located thereon escaped from the 

premises of the owner and caused direct physical injury.7

Contrary to the majority's suggestion otherwise, this Court 

has consistently required that the plaintiff be an identifiable 

individual or a member of a class of identifiable individuals to 

justify the imposition of a duty owed by the defendant to the 

particular plaintiff.8

 "The question of liability for negligence 

cannot arise at all until it is established that 

the man who has been negligent owed some duty to 

the person who seeks to make him liable for his 

negligence. . . A man is entitled to be as 

negligent as he pleases towards the whole world if 

he owes no duty to them." 

Dudley v. Offender Aid & Restoration of Richmond, Inc., 241 Va. 

270, 277, 401 S.E.2d 878, 882 (1991) (quoting Le Lievre v. 

Gould, 1 Q.B. 491, 497 (1893)). Thus, "there is no such thing 

as negligence in the abstract, or in general, or as sometimes is 

said, in vacuo. Negligence must be in relation to some person." 

 7

 Perlin v. Chappell, 198 Va. 861, 863-64, 96 S.E.2d 805, 

807-08 (1957) (bull escaped fenced-in area of a slaughterhouse 

and stockyard, and injured a worker in a nearby shipyard); Rice 

v. Turner, 191 Va. 601, 604-06, 62 S.E.2d 24, 25-26 (1950) (a 

cow escaped from a fenced-in pasture and wandered onto a highway 

in front of a car, causing an accident); Standard Oil Co. v. 

Wakefield, 102 Va. 824, 826-28, 47 S.E. 830, 830-31 (1904) 

(failure to properly adjust a valve allowing escape of dangerous 

gas, causing injury when escaped gas exploded). 

8

 If the majority means to establish a duty owed by owners 

and occupants of land to exercise due care in the use of their 

land with regard to "drivers on private roads located on 

adjacent lands," this would constitute a new duty that before 

today did not exist under Virginia law and is not supported by 

our existing precedent as previously discussed. 
69 

Kent v. Miller, 167 Va. 422, 425-26, 189 S.E. 332, 334 (1937). 

"The scope of the duty will vary with the circumstances of each 

case, but it is always a duty owed to a discernible individual, 

or to a class of which that individual is a member." Dudley, 

241 Va. at 278, 401 S.E.2d at 883; see also Marshall v. Winston, 

239 Va. 315, 320, 389 S.E.2d 902, 905 (1990) (for negligence to 

be actionable, the tort victim must be "an identifiable person, 

or a member of an identifiable class of persons, to whom the 

defendants owed a duty."); Kent, 167 Va. at 426, 189 S.E. at 334 

("What may be negligence as to one person may not be so as to 

another."); Boggs v. Plybon, 157 Va. 30, 38, 160 S.E. 77, 80 

(1931) (Because the "duty varies in each case as the facts vary 

. . . some particular act which would be actionable negligence 

under one set of circumstances would give no basis for recovery 

in another.").9

 The general common law duty that the Court believes to 

justify the circuit court's instruction in this case is present 

 9

 "In the early English law, there was virtually no 

consideration of duty" or "any notion of a relation between the 

parties, or an obligation to any one individual as essential to 

the tort." W. Page Keeton, et al., Prosser & Keeton on Torts § 

53 at 356-57 (5th ed. 1984). In other words, "[t]he defendant's 

obligation to behave properly apparently was owed to all the 

world, and he was liable to any person whom he might injure by 

his misconduct." Id. However, "when negligence began to take 

form as a separate basis of tort liability, the courts developed 

the idea of duty, as a matter of some specific relation between 

the plaintiff and the defendant." Id. 

 
70 

in all tort cases. In this instance, plaintiff's decedent was 

operating a motor vehicle on a private roadway. Virginia common 

law has delineated the duty owed to one who is operating a motor 

vehicle on a roadway. It appears that the majority opinion will 

undermine tort law as we know it and require a jury verdict in 

every tort case based upon whether or not a plaintiff decides to 

"impose the duty of general tort law," whether they have pled a 

breach of that duty or not. 

 In the context of property and land-use negligence, the 

majority's adoption of a general maxim as the specific duty in 

this case renders meaningless the stratified duties this Court 

has previously established according to the status of the 

plaintiff in relation to the defendant. As we have explained, 

"there is a marked difference between the duties which the 

occupant of land owes to trespassers, licensees and invitees, 

respectively. Trespassers and bare licensees, as a rule, take 

the risk of the place as they find it." Pettyjohn & Sons v. 

Basham, 126 Va. 72, 77-78, 100 S.E. 813, 814-15 (1919); see also

Franconia Assocs. v. Clark, 250 Va. 444, 446-47, 463 S.E.2d 670, 

672-73 (1995).10 However, an owner or occupant of land is liable 

 10 In fact, the majority's adoption of the abstract duty is 

incongruent with the decision rendered in Lasley v. Hylton, ___ 

Va. ___, ___ S.E.2d ___ (2014)(this day decided) in which the 

Court invoked the specific duty owed by a landowner to a social 

guest, a more narrow duty than the general maxim relied upon by 

the majority in this case. 
71 

to a licensee, including a social guest, for injuries caused by 

affirmative negligence. Bradshaw v. Minter, 206 Va. 450, 453, 

143 S.E.2d 827, 829 (1965). In contrast, an owner or occupant 

of land "must use ordinary care to keep his premises reasonably 

safe for an invitee." Tate v. Rice, 227 Va. 341, 345, 315 

S.E.2d 385, 388 (1984). An owner or occupant of land, though, 

has no duty to warn an invitee of an unsafe condition that is 

"open and obvious." Id.11 Under the majority's holding, the 

decisions we have rendered defining the duties owed by owners 

and occupants of land to trespassers, licensees, and invitees 

are no longer relevant, if not impliedly overruled because every 

plaintiff can now choose to rely upon this maxim if the duty 

previously imposed by common law does not suit it. In this 

instance, the majority rules that RGR owed a duty to Settle, who 

was not an entrant on RGR's premises, that it would not have 

owed to a trespasser or licensee on its premises.12

 

 11 As the majority notes, RGR contends that the circuit 

court relied upon premises liability law to impose a duty in 

this case. RGR's point is well-taken because the duty imposed 

by the circuit court mirrored the duty owed by an owner or 

possessor of land to an invitee on its premises, which Settle 

certainly was not. Yet, this duty failed to take into account 

that an owner or occupant of land owes no duty to warn of an 

open and obvious condition, which the stack of lumber surely 

was. 

12 The decisions we have rendered on duties owed by owners 

and occupants of land have depended not only on the status of 

the injured party in relation to the defendant, but on the use 
72 

In actions against owners and occupiers of land by 

plaintiffs injured off the defendant's premises, we have 

similarly required a relation between the defendant and 

plaintiff that would justify the imposition of a duty. As 

discussed previously, we have imposed limited duties upon owners 

and occupants of land to travelers on abutting public highways 

and owners of adjoining land depending on the act or condition 

encroaching upon the abutting highway or property. For example, 

in Cline, 284 Va. at 107-10, 726 S.E.2d at 17-18, we recognized 

the "broad common law maxim" precluding "use of land so as to 

injure the property of another" but analyzed and determined 

whether there was a duty owed by the defendant to the plaintiff 

in that case based on the specific duties owed by landowners to 

travelers on abutting public highways and the nature of the 

encroachment onto the highway. 13 Under the majority's holding 

in this case, the adoption of the broad maxim as the duty owed 

 

of the premises and act complained of as well. For example, we 

have "decline[d] to extend to a householder the duty imposed 

upon commercial establishments, carriers, municipalities, and 

landlords to remove natural accumulations of snow and ice within 

a reasonable time after the end of a storm." Tate, 227 Va. at 

348, 315 S.E.2d at 390. 

 

13 See Price, 149 Va. at 543, 140 S.E. at 646 (recognizing 

"two classes of things that an adjoining landowner may do at his 

peril in connection with a public easement"); see also cases 

cited supra note 4. 
73 

eliminates the necessity of any assessment by the courts of the 

duty owed by a defendant to a plaintiff in a given case. 

In sum, the Court's adoption of a broad maxim as the duty 

in this case is inconsistent with the specifically defined 

duties, including their limitations, this Court has previously 

imposed upon owners and occupants of land. Because the Court 

adopts this general principle as the specific duty in this case 

without regard to the plaintiff's status or relation to the 

defendant or the nature of the purportedly dangerous condition 

on the premises, the Court's holding imposes on all owners or 

occupants of property a duty that is broader than that 

previously imposed under circumstances in which either the duty 

owed was more limited or even non-existent. 

Furthermore, because the Court approves a jury instruction 

reciting this broad maxim as the controlling duty, specific jury 

instructions traditionally given in cases against property 

owners based upon these specific duties are no longer relevant. 

See, e.g., 1 Virginia Model Jury Instructions – Civil, Nos. 

23.000 through 23.130 and 29.000. A plaintiff can now elect to 

rely on this general maxim and its corresponding instruction as 

establishing the duty. Under the Court's holding, therefore, 

the general maxim establishes the duty in property and land-use 

negligence cases and it is no longer necessary or even 

appropriate to determine what specific duty a particular 
74 

defendant owes to a particular plaintiff in a given case. Thus, 

for all intents and purposes, the Court has eliminated duty as 

an essential element in actions alleging negligence against 

owners and occupants of property. 

III. Contributory Negligence 

I also disagree with the majority's holding that the issue 

of Settle's contributory negligence was properly submitted to 

the jury. As recited by the majority, this case was previously 

decided, and upon a petition for rehearing, the Court's opinion 

was withdrawn and a new majority opinion is now issued. I 

believe the Court's initial opinion, holding that Settle was 

contributorily negligent as a matter of law, was correct. 

Therefore, I incorporate herein the Court's original analysis. 

Additionally, in my opinion, Mrs. Settle's own evidence 

established that Settle was contributorily negligent as a matter 

of law in deciding to cross railroad tracks under circumstances 

in which, under her view of the case, neither looking nor 

listening could have led Settle to avoid the collision. 

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, and 

that although other individuals heard the train's horn when it 

approached the Route 15 crossing, Settle did not look to his 
75 

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 

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

122, 132, 244 S.E.2d 781, 786-87 (1978).14 "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 

 14 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." 
76 

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 

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. 
77 

The plaintiff's experts in that case 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 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 should 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. 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 
78 

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 

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. 
79 

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). 

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 
80 

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 

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. 
81 

However, Mrs. Settle's argument itself establishes the 

basis for contributory negligence as a matter of law. She 

asserts that due to the size and gearing characteristics of 

Settle's dump truck and the weight of the load he was hauling, 

it was both "dangerous to stop" and "dangerous to go" upon 

approaching the Kapp Valley Way crossing. In particular, if 

Settle looked to his right upon clearing the lumber stack and 

saw an oncoming train, he would not have had sufficient time and 

distance to stop his truck even at walking speed. If Settle did 

stop prior to crossing the tracks and determined no train was 

coming from the west and then proceeded to cross the tracks, he 

would not have had sufficient time to avoid a collision with a 

train coming from the east, with only 600 feet of track visible 

to the east. Therefore, she argues that Settle could not avoid 

a collision with an oncoming train regardless of the speed at 

which he was driving and regardless whether he looked and saw an 

oncoming train. 

Mrs. Settle argues that the safest course for Settle was to 

approach the crossing slowly without stopping despite the fact 

that this course was no safer than stopping before crossing. 

The majority concludes that "Settle was forced to rely on his 

hearing," a course that was also unsafe due to his diminished 
82 

ability to hear.15 This "dangerous to stop" and "dangerous to 

go" predicament was known to Settle who, prior to the accident, 

made six trips to deliver gravel to the construction site on the 

day of the accident alone. With full knowledge of these 

conditions – that he would not be able to stop if he saw a train 

and would not be able to hear if the train blew its whistle - 

Settle chose to proceed into the crossing. In other words, no 

precaution was reasonable once Settle made the decision to 

cross.16

Under Mrs. Settle’s view of the evidence, then, the issue 

is not whether Settle discharged his duty to look and listen in 

such a manner that was effectual because, under Mrs. Settle's 

view of the case, looking and listening could never be effectual 

considering the presence of the lumber stack, the size of 

Settle's truck, the gearing characteristics, the weight of his 

 15 The fallacy in this reasoning and Mrs. Settle's 

contention is that this position assumes Settle was "forced" to 

cross the tracks in the first place. Under this rationale, 

Settle's only option was to attempt a crossing that was unsafe 

regardless of whether he looked or listened and regardless of 

whether he approached slowly or stopped. Thus, according to 

Mrs. Settle and the majority, Settle's contributory negligence 

was a question for the jury since reasonable minds could differ 

as to whether approaching the crossing at a slow rate of speed 

constituted the exercise of due care. Yet, under Mrs. Settle's 

view of the evidence and her argument, even approaching the 

crossing at a slow rate of speed was no precaution at all. 

16 A Norfolk Southern employee testified that as a result of 

the construction traffic, a flagging service could have been 

requested at the Kapp Valley Way crossing, but no such request 

was received. 
83 

load, and his diminished ability to hear noises outside his cab. 

Rather, the issue is whether reasonable minds could differ on 

whether Settle was exercising reasonable care for his own safety 

when he chose to cross railroad tracks under circumstances in 

which no amount of looking and listening could have avoided a 

collision with an oncoming train. As we have stated, "[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." Campbell, 172 Va. at 318, 1 S.E.2d at 258. In my view, 

reasonable minds could not differ on the conclusion that Settle 

took no precautions for his safety in deciding to cross railroad 

tracks under circumstances, established by Mrs. Settle's own 

evidence and arguments, in which neither looking nor listening 

could have led him to avoid the collision.