Roanoke Ry. & Electric Co v. Carroll

• Decision Date: 14 September 1911
• Citation: 72 S.E. 125,112 Va. 598
• Court: Virginia Supreme Court
• Parties: ROANOKE RY. & ELECTRIC CO. v. CARROLL.

72 S.E. 125

112 Va. 598

ROANOKE RY. & ELECTRIC CO.

v.CARROLL.

Supreme Court of Appeals of Virginia.

Sept. 14, 1911.

1. Street Railroads (§ 93^*)—Injuries to Persons on Track—Duty on Seeing Persons on Track.

A motorman is not obliged to stop his car merely because he sees a pedestrian approaching the track, as it is reasonable to assume that he will stop and wait for the car to pass, and not attempt to cross immediately in front of it.

[Ed. Note.—For other cases, see Street Railroads, Cent Dig. §§ 195-200, 203; Dec. Dig. § 93.*]

2. Negligence (§ 83*) — "Last Clear Chance."

The doctrine of the last clear.chance rests upon the principle that there is something in the plaintiff's condition or situation to admonish the defendant that he is not able to protect himself. It is the doctrine of prior and subsequent negligence, or remote and proximate cause, and presupposes the intervention of an appreciable interval of time between the prior negligence of the plaintiff and the subsequent negligence of the defendant. It applies notwithstanding the contributory negligence of the plaintiff when the defendant knows, or by the exercise of ordinary care ought to know, of plaintiff's danger, and fails to do something which it has power to do to avoid the injury, or when the plaintiff is in some position of danger from a threatened contact with some agency under the control of the defendant, when the plaintiff cannot and the defendant can prevent a resulting injury.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*

For other definitions, see Words and Phrases, vol. 5, p. 4006.]

3. Street Railroads (§ 103*) — Contributory Negligence—Last Clear Chance.

Where the evidence in an action for personal injuries showed that the accident occurred instantaneously with plaintiff's stepping upon defendant's street railroad track, and makes it clear that, if his danger was discovered or might have been discovered, it was not possible to have stopped the car in time to have avoided a collision, the last clear chance doctrine does not apply.

[Ed. Note.—For other cases, see 'Street Railroads, Cent. Dig. § 219; Dec. Dig. § 103.*]

4. Trial (§ 267*)—Instructions—Modification by Court.

In an action against a street railroad for injuries to a person on its track, the court's modification of defendant's instructions as to contributory and concurrent negligence by appending the last clear chance doctrine to the instructions is error, as the instructions were intended to present defendant's theory of the case, and should have been given without qualification.

[Ed. Note.—For other cases,.see Trial, Cent. Dig. §§ 668-672; Dec. Dig. § 267.*]

5. Street Railroads (§ 93*)—Care in Operation of Road—Care at Crossing.

Where the view of the street railroad crossing is obstructed, it imposes upon the railroad the reciprocal duty of using special precautions, depending upon the particular location and circumstances, to avoid accident.

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*]

6. Street Railroads (§ 98*)—Care of Person Crossing Track—View of Crossing Obstructed.

Where the view of a street railroad crossing is obstructed, it imposes upon a person crossing the track the reciprocal duty of using a higher degree of caution, depending upon the particular location and circumstances, to avoid injury.

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*]

7. Street Railroads (§ 93*) —Actions for Injuries—Instructions.

An accident, by which plaintiff sustained injuries while crossing the track of a street railroad at the intersection of streets adjacent to a square, is so near a crossing as to bring it within the law applicable to crossing cases.

[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 93.*]

8. Street Railroads (§ 118*)—Actions for Injuries — Instructions — Contributory Negligence.

An instruction in an action for injuries sustained on a street railroad crossing, which denies a recovery to plaintiff if he failed to use ordinary care and caution at the time of and prior to the accident, is erroneous because of its omission to state that the assumed failure of the plaintiff to exercise ordinary care, must have efficiently contributed to the injury.

[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 118.*]

9. Street Railroads (§ 117*)—Contributory Negligence—Looking and Listening.

It is not negligent as a matter of law for a person to go upon a street car track without looking and listening.

[Ed. Note.—For other cases, see Street Railroads, Cent. Digt §§ 248-250; Dec Dig. § 117.*]

10. Trial (§ 243*)—Instructions—Self-Contradictory Instructions.

Requested instructions in an action for injuries on a street car track, that it was not negligence for a person to go upon the track without looking and listening, but that the law required that a person must use due care and must look and listen before going on the track, especially where the approach is partially ob-structed, is self-contradictory, and properly refused.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 243.^2-*]

11. Trial (§ 260*)—Instructions—Instructions Already Given.

The refusal of requested instructions as to

questions dealt with and covered in instructions

already given is proper. [Ed. Note.—For other cases, see Trial, Cent.

Dig. §§ 651-659; Dec. Dig. § 260.*]

Error to Corporation Court of City of Roanoke.

Action by John O. Carroll against the Roanoke Railway & Electric Company and the City of Roanoke. Action discontinued as to the City of Roanoke. Judgment for plaintiff, and defendant Roanoke Railway & Electric Company brings error. Reversed and remanded for new trial.

Plaintiff's first instruction was given as follows:

“The court instructs the jury that a street car running and operating its cars on the streets of a city must use greater care and diligence to prevent injury to persons and property than is required of them in running and operating their cars in less frequented and populous localities, and so in certain localities in the city greater precautions may be necessary than in others; for example, if a car is being run past an obstruction in the street and near to its' tracks so that objects or persons on the other side of it are hidden from view, it is required of the street car company to resort to special precautions, depending upon the particular locality and the circumstances, to avoid accidents, and any neglect of any such precautions as are proper under the peculiar surroundings and circumstances of the locality constitutes negligence, for which the street car company is liable in damages, unless the plaintiff by the exercise of ordinary care on his part could have prevented the accident, and the burden is on the street car company to prove such absence of ordinary care on the part of the plaintiff."

Defendant's eighth instruction, which read, "The court instructs the jury that, even though they may believe from the evidence that the approach to the track which defendant's car was approaching was partially obstructed by a pile of lumber, yet that fact did not lessen the care and caution required of plaintiff in attempting to cross, but, on the contrary. Imposed on him a higher degree of caution" —was modified and given as follows:

"The court instructs the jury that, even though they may believe from the evidence that the approach to the track on which defendant's car was approaching was partially obscured by a pile of lumber, yet that fact did not lessen the care and caution re quired of plaintiff in attempting to cross, but the existence of such obstruction should be considered by the jury in ascertaining what is reasonable care on the part of a person crossing said track."

The following instructions requested bydefendant were refused:

"(2) The court instructs the jury that, while it is not negligence as a matter of law for a traveler to go upon a street oar track without looking and listening, it is a settled principle of law that one who approaches a street railway track must use due care, and ordinary due care means that he must look and listen, and especially is this so where the approach to the track is partially obstructed.

"(3) The court instructs the jury that if they shall believe from the evidence that the plaintiff attempted to cross defendant's track at a point where its cars frequently passed to the knowledge of plaintiff, and where a view of the tracks was partially obstructed by a pile of lumber near the track, then it was the duty of the plaintiff to look and listen before attempting to cross the track, and if the jury shall believe from the evidence that he failed to look and listen, and that his failure so to do either caused or contributed proximately to his injury, then he was guilty of contributory negligence, and there can be no recovery in this case, though the jury may believe from the evidence that the defendant was negligent

"(4) The court instructs the jury that, though they may believe from the evidence that the defendant company was negligent, still the plaintiff cannot recover in this case if they shall also believe from the evidence that he failed to exercise ordinary care and caution at the time of and prior to the accident, and by ordinary care is meant that degree of care, caution, and prudence which an ordinary prudent and cautious man would exercise under like circumstances."

"(15) The court instructs the jury that if they believe that the collision in which the plaintiff was injured occurred in the market or public square, and not at the crossing at the east side of said square, then the duties imposed by law upon the defendant as to the manner of approaching crossings with its cars do not apply to this case.

Hall, Woods & Jackson, for plaintiff in error.

Hairston, Hairston & Willis and Scott, Altlzer & Watts, for defendant in error.

WHITTLE, J. This action was brought by John O. Carroll against the...