Am. Tobacco Co v. Polisco

• Citation: 104 Va. 777,52 S.E. 563
• Parties: AMERICAN TOBACCO CO. v. POLISCO.
• Decision Date: 18 January 1906
• Court: Supreme Court of Virginia

52 S.E. 563

104 Va. 777

AMERICAN TOBACCO CO.

v.POLISCO.

Supreme Court of Appeals of Virginia.

Jan. 18, 1906.

1. Municipal Corporations—Use of Streets —Negligence—Question for Jury.

In an action for injuries to a child run over by a vehicle driven by defendant's servant, the question as to the driver's negligence held one for the jury.

2. Trial—Erroneous Instruction—Cure.

In an action for injuries to a child run over by a vehicle driven by defendant's servant, the court instructed that, if the driver at the time of the accident was looking where some persons were using a punching bag and did not see the child, plaintiff was entitled to recover. Other instructions told the jury in effect notthat the failure to look was carelessness, but that if the driver negligently failed to look, and negligently and carelessly drove on, and that he could by the exercise of reasonable care have seen the child and could have avoided the accident, they should find for plaintiff. Held, that the error in the first instruction, in taking from the jury the consideration of circumstances other than the driver's conduct in looking at the bag, was not cured by the other instructions.

[Ed. Note.—For cases in point, see vol. 47, Cent. Dig. Trial, §§ 564, 705, 718.]

3. Appeal—Harmless Error—Inconsistent Instructions.

Where two instructions are inconsistent and contradictory, the verdict will be set aside, unless it clearly appears that taking the instructions as a whole the defect could not have misled the jury.

[Ed. Note.—For cases in point, see vol. 47, Cent. Dig. Trial, §§ 564, 705, 718.]

4. Same — Presumption as to Effect of Error.

A misdirection or mistake of the court appearing in the record is to be presumed to have affected the jury, and the judgment will be reversed unless it plainly appears that the error could not have affected their verdict.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4043.]

5. Municipal Corporations—Use of Streets —Contributory Negligence—Children.

A child a little over five years of age cannot be held guilty of contributory negligence in running across a street and into a wagon.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 124.]

6. Same—Care as to Children.

Where the driver of a vehicle by the exercise of reasonable care could have seen a child who ran across a street and ran into the wagon, and thus avoided injury to her, but failed to do so, he was guilty of negligence.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1515; vol. 25, Cent. Dig. Highways, § 459.]

7. Same—Trial—Issues.

Where, in an action for injuries to a child owing to the alleged negligence of the driver of defendant's vehicle, the declaration charged that the driver was looking to one side of the street, and that while so doing the child attempted to run across the street, and, not being observed by the driver, was struck and run over by the wagon, the allegations were sufficient to warrant a recovery on a showing that the child ran across the street and ran into the wagon.

Error to Corporation Court of Danville.

Action by Joseph Polisco against the American Tobacco Company. Judgment in favor of plaintiff, and defendant brings error. Reversed.

Peatross & Harris and Cabell & Cabell, for plaintiff in error.

J. P. Harrison and Thos. F. Hamlin, for defendant in error.

CARDWELL, J. Joseph Polisco, the father, and as the next friend of his infant daughter, Becky Polisco, a little over five years of age, brought this action against the American Tobacco Company to recover damages for injuries alleged to have been sustained by her in consequence of the carelessness and negligence of the driver of a wagon of the defendant company passing over and along Craghead street, in the city of Danville.

The trial in the lower court resulted in a verdict and judgment against the defendant company for $1,800, which we are asked to review and reverse.

The declaration filed consists of two counts, in both of which the charge is made that at the time the vehicle he was driving ran over the child the driver was looking to one side of the street where some persons were assembled witnessing others sporting with a punching bag at or near the sidewalk, and, while the driver was thus looking to that side of the street, the child attempted to run across the street from the opposite side to her father's store, situated diagonally from the point at which she started, and, not being observed by the driver, was struck and run over by the wagon, and sustained serious permanent injuries.

No attempt was made at the trial to show that the driver was not skillful, experienced, trustworthy, and reliable, nor was there any evidence that he was driving rapidly or recklessly; so that his negligence, if any there was, consisted in looking to the side of the street where the group at the punching bag was, and not keeping a reasonably careful lookout along the street in front of the wagon.

The case does not belong to that class of cases to which Persinger v. Coal Co., 102 Va. 350, 46 S. E. 325, and Con. Brewing Co. v. Doyle, 102 Va. 399, 46 S. E. 390, cited by counsel for plaintiff in error, belong, and which hold that a defendant is not liable for damages resulting from an event which was not expected, and could not have been anticipated by a person of ordinary prudence; but to that class which have dealt with similar occurrences to the one out of which this case arises, on the streets of populous cities, in which it has been uniformly maintained that on a street of a city a driver of a vehicle is held to reasonably expect to meet people, young and old, in the street or crossing the street, and the law requires him to keep a lookout for them in order to avoid injuring them, and not to turn aside and put his attention and sight on other objects; and that whether or not an injury to a person on the street by being run over by a vehicle passing thereon was proximately caused by the negligence of the driver in not keeping a proper lookout along the street in front of him was a question for the jury. Among the cases last referred to are Wiswell v. Doyle, 160 Mass. 42, 35 N. E. 107, 39 Am. St. Rep. 451; Kennedy v. Sullivan (N. J.) 48 Atl. 535; McDonnel v. Brewing Co. (Sup.) 44 N. Y. Supp. 652; Nugent v. Metropolitan St. Ry. (Sup.) 61 N. Y. Supp. 476; Summers v. Bergner Brewing Co., 143 Pa. 114, 22 Atl. 707, 24 Am....