Roanoke Ry. & Electric Co v. Sterrett

• Citation: 108 Va. 533,62 S.E. 385
• Court: Virginia Supreme Court
• Decision Date: 10 September 1908
• Parties: ROANOKE RY. & ELECTRIC CO. v. STERRETT.

62 S.E. 385

108 Va. 533

ROANOKE RY. & ELECTRIC CO.

v.STERRETT.

Supreme Court of Appeals of Virginia.

Sept. 10, 1908.

1. Carriers—Accident to Train—Collapse op Bridge—Hidden Defect—Evidence.

Evidence held to sustain the theory that the collapse of a street railway company's bridge was caused by a hidden and internal defect in the weld of a cord which supported the entire structure, and which broke at the place where welded, which defect could not have been detected by the utmost scrutiny.

2. Same—Carriage of Passengers—Personal Injuries—Hidden Defects.

Where an accident arises from a hidden and internal defect, which a thorough examination would not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, the carrier is not liable for an injury to a passenger resulting therefrom.

3. Negligence—Acts Constituting Negligence—"Inevitable Accident."

An accident is inevitable if the person in connection with whom it occurs neither has, nor is legally bound to have, sufficient power to avoid it or prevent its injuring another; and in such a case, the essential element of legal duty being wanting, the person cannot be held negligent.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Negligence, § 80.

For other definitions, see Words and Phrases, vol. 4, pp. 3571-3573.]

4. Carriers—Carriage of Passengers—Personal Injuries—Negligence.

The slightest neglect against which human prudence and foresight might have guarded, and by reason of which an injury may have been occasioned, renders a carrier liable for an injury to a passenger.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1087.]

5. Same—Trial—Instructions.

In an action by a passenger against a carrier for injuries resulting from the collapse of a bridge, a requested charge that plaintiff, to establish defendant's negligence, must show more than a probability of a negligent act, and cannot recover if it is. just as probable that the accident resulted from one of two causes, for one of which defendant was not responsible, was properly modified to state that plaintiff, to establish defendant's negligence, must show more than a probability of a negligent act, but that, when plaintiff had shown that she was injured by the breaking down of the bridge and overturning of the car. it was sufficient proof of defendant's negligence, and that the burden of proof was then on defendant to establish by a preponderance of evidence that it has been guilty of no negligence whatsoever which caused the accident, and that the damage has been caused by inevitable casualty or by some cause which human care and foresight could not prevent.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1334.]

6. Same—Presumption of Carrier's Negligence.

The presumption of a carrier's negligence does not arise from the abstract fact of an accident to a passenger, but whether it exists depends upon the nature of the accident, which must be such as does not in the usual course of things happen to passengers when due care is exercised by the carrier.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1283-1294.]

Error to Circuit Court, Roanoke County.

Action by Mary E. Sterrett against the Roanoke Railway & Electric Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for a new trial.

Robertson, Hall, Woods & Jackson and Dupey & Whittle, for plaintiff in error.

N. H. Hairston & Son, and Hoge & Penn, for defendant in error.

HARRISON, J. This action was brought by Mary E. Sterrett against the Roanoke Railway & Electric Company to recover damages for injuries alleged to have been sustained by her in consequence of the negligent failure of the defendant company to maintain one of its street railway bridges in a safe condition. The trial resulted in a verdict and judgment in favor of the plaintiff, the propriety of which is called in question by this writ of error.

In the view we take of the case, it will conduce to clearness and brevity to consider first the assignment of error, which involves the action of the circuit court in refusing to set aside the verdict of the jury, upon the ground that it was contrary to the law and the evidence.

The record shows that one branch of the defendant's street car system ran from Roanoke City for a distance of some 2 1/2 miles to the suburban town of Vinton. Before reaching the corporate limits of Vinton, this line crossed Tinker creek on an iron truss bridge, which was about 75 feet long, made into one span composed of six sections of 12 1/2 feet each. Upon each section of the-span was placed wooden stringers, running the length of each section. These stringers were 12 by 10 inches in size, and were supported at either end of the 12 1/2-foot section by resting about 2 or 2 1/2 inches on metal plates, called "floor beams, " about 5 inches in width. These wooden stringers were fastened together with straps, so as to hold them together and prevent lateral movement. Upon these stringers were placed the cross-ties, which were securely fastened, and to the ties were spiked the rails. The record further shows that this bridge is what is known as a "pin connected Pratt truss bridge"; that the truss is supported by long iron cords, known as top and bottom cords, made of wrought iron. These cords come together at a point just under the track, and are connected by a pin or post, made of wrought iron, which pin runs through loops at the ends of these cords. It is shown that the entire weight of the bridge is held up by these cords, and the bridge so constructed that if the connecting pin is broken, or any one of the cords is broken, the bridge will collapse. It appears that the iron bridge in question was made to order for the defendant company by the Virginia Bridge & Iron Company, of Roanoke, Va., which is shown to have been, and still to be, a thoroughly reputable, competent, and reliable manufacturer. It further appears that at the time of the accident the bridge hadbeen continuously in use for six years, and was believed by the defendant railway company to be perfectly safe and suitable for the use to which it was put. It further appears that some eight or ten months prior to the accident this bridge was thoroughly overhauled, new stringers were put in, and the entire structure examined and inspected. It is also shown that about two months prior to the accident new 60-pound rails were substituted for old rails, and the entire bridge at that time again examined and inspected. It further appears that a competent inspector of bridges was kept in the employ of the defendant company, who examined this bridge every few weeks, and that no defect was discovered, except those which were repaired in the manner already mentioned. The capacity of the bridge is shown to have been very much greater than was actually necessary for the purposes and uses to which the bridge was put.

On the morning of the accident several cars, heavily loaded with passengers, had passed over the bridge safely, with nothing occurring to suggest or indicate any defect therein. Finally the car involved in the accident under consideration, containing about 85 or 90 passengers, came upon the bridge on its way from Vinton to Roanoke. It had passed over about three-fourths of the bridge, when suddenly and without warning the structure collapsed, and the bridge, with the exception of a portion of its western section, fell into the stream. The car, with its passengers, was for a while held up by the rails, but these rails gradually bent until one of them broke, precipitating the rear end of the car into the stream. Mary E. Sterrett, the defendant in error, was a passenger on this car, and received the injuries of which she complains.

Totally different theories are advanced by the parties, respectively, as to the cause of this accident. The defendant in error contends that some of the stringers, the ends of which rested upon the floor beams, had slipped until the lap or catch was reduced from 2 or 2 1/2 inches to only one inch and a half, and that the defendant company had, or ought to have had, notice of this alleged defect. The contention of the defendant in error is, further, that the weight of the car upon these stringers caused them, at the time of the accident, to slip entirely off of the floor beams, thus...