Atl. & D. R. Co v. Ironmonger

• Decision Date: 10 February 1898
• Citation: 95 Va. 625,29 S.E. 319
• Court: Virginia Supreme Court
• Parties: ATLANTIC & D. R. CO. v. IRONMONGER.

29 S.E. 319

95 Va. 625

ATLANTIC & D. R. CO.

v.IRONMONGER.

Supreme Court of Appeals of Virginia.

Feb. 10, 1898.

Railroads — Accident at Crossing — Instructions—Imputed Negligence—Measure of Damages—Appeal—Harmless Error.

1. In an action for injuries by a collision between defendant's train and a vehicle driven by the owner, in which plaintiff was riding by such owner's invitation, the court charged that if plaintiff had no control over the team, and she and the driver were each independent of the control of the other, and defendant was guilty of any negligence, it was liable to plaintiff, whether or not the driver was negligent. Held, that such instruction was not proper without the qualification that plaintiff must be free from contributory negligence.

2. It was not error to refuse to give an instruction which assumed that the rule of law that the negligence of the driver cannot be imputed to the passenger is not applicable where the "passenger is so located" in the vehicle as to have an opportunity to discover the danger, and inform the driver of it.

3. A married woman cannot, in an action for personal injuries, recover for the expense of her cure where she does not show that the expense was paid out of her separate estate.

4. Nor can she recover for loss of time where she does not show that she was a sole trader.

5. In an action by a married woman for personal injuries, where there was improper evidence of loss of time and money paid for her cure, the court cannot say that it was harmless error to charge that the jury might consider loss of time and expense of her cure in their verdict.

Appeal from hustings court of Portsmouth.

Action by Mary A. Ironmonger against the Atlantic & Danville Railroad Company for personal injuries caused by defendant's neg-ligenee. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

A. P. Thorn, for appellant.

Murdaugh & Marshall, for appellee.

BUCHANAN, J. The action of the court in overruling the demurrer to the declaration, in refusing to remove the case for trial to the circuit court for the county of Norfolk, and in refusing to give the instruction set out in bill of exceptions No. 6, is assigned as error in the petition for this writ of error. Since the writ was awarded, the case of the plaintiff in error against Francis Rieger, which arose out of the same collision or accident as did this case, has been decided. 28 S. E. 590. The same questions were raised and decided in that case adversely to the plaintiff in error.

The record, so far as these assignments of error are concerned, being substantially the same in both cases, that decision, It Is conceded, controls the decision of this case as to them. They, therefore, need not be further considered. Indeed, they were abandoned in oral argument.

The third assignment of error is to the action of the court in giving instruction No. 8 asked for by the defendant in error, and in refusing to modify that instruction by making an addition thereto which Is set out In bill of exceptions No. 4.

The questions involved In this assignment of error were raised and decided in the Rieger Case. In that case it was held that instruction No. 3 was erroneous, and the action of the court In giving it was one of the errors for which the judgment was reversed. It was further held that the addition to that Instruction as asked for was properly refused.

The facts of the two cases being substantially the same upon which that instruction and the addition were based, the decision in this case must be the same as in that, and for like reasons.

The second error assigned is to the action of the court in giving instruction No. 2 asked for by the defendant in error, and which is as follows:

"The court instructs the jury that if they believe from the evidence that the plaintiff had no control over the management of the team, and that the plaintiff and the driver, Francis Rieger, were each independent of control by the other, and that the defendant, the Atlantic & Danville Railway Company, was guilty of any negligence which contributed to the injuries to the said plaintiff, then the defendant, the Atlantic & Danville Railway Company, are liable to the said plaintiff, regardless of whether or not the driver, Francis Rieger, was guilty of any negligence."

Instruction No. 1 given by the court upon the motion of the defendant in error was upon the same point, was a full and accurate statement of the law, and rendered unneces sary any further instruction upon...