Atl. & D. Ry. Co v. Rieger

Citation95 Va. 418,28 S.E. 590
CourtSupreme Court of Virginia
Decision Date02 December 1897
PartiesATLANTIC & D. RY. CO. v. RIEGER.

Change of Venue—Impaneling op Jury —Ex ami-nation op Witnesses—Evidence—Objections-Rebuttal—Railroads—Crossing Accidents-Signals op Approach—Negligence—Pleading and Proof—Instructions—Appeal—Review.

1. A motion for a change of venue on the ground of general prejudice or ill feeling against movant on account of certain conduct is properly overruled when the case does not have any connection with such conduct, and witnesses by whom such feeling is shown express the opinion that an impartial jury can be had in the venue to try the case.

2. In an action against a railroad corporation, in obtaining a jury a person could not be asked, on his voir dire, by defendant, whether he was prejudiced against corporations.

3. When a proper question is asked of a juror on his voir dire, and the court refuses to permit it to be answered, in order to subject the court's action to a review the record must show what the questioner expected or proposed to prove by the juror.

4. Where a witness has been examined, cross-examined, and re-examined, and no new matter is brought out on the re-examination, the examination is ordinarily considered closed, and the privilege of a recross-examination is within the absolute discretion of the court; and hence it was not error that the court, after permitting the recross-examination to commence, interrupted counsel as he was asking a question, and stopped the examination, without knowing what the question was.

5. Where defendant in an action for negligence introduced evidence of a conversation between plaintiff and two of his witnesses which tended to show plaintiff guilty of contributory negligence, and also evidence of statements alleged to have been made by one of such witnesses in the presence of a third witness, the two witnesses might be called in rebuttal to deny the conversation, and the third witness to deny the statements.

6. The failure to sound the whistle of an approaching locomotive at least twice, sharply, not less than 300 yards before a highway crossing, as required by Acts Assem. 1893-94, pp. 827, 828, constitutes negligence on the part of the company which cannot be cured by sounding at a shorter distance.

7. Though a locomotive whistle be not blown as required by law on the train's approaching a highway crossing, yet a traveler on the highway, injured by the locomotive, is not entitled to recover against the railroad company where he knew, or by the exercise of ordinary care ought to have known, in time to avoid the injury, that the locomotive was approaching; and it is not necessary, in order to defeat his recovery, that recklessness should have characterized his conduct

8. Under a declaration for a personal injury received at a railroad crossing, alleged to have been caused by the company's negligently managing, conducting, and running its locomotive, plaintiff could show the absence of a flagman and safety gates at the crossing, as bearing on the negligence alleged.

9. In an action for injuries received at a railroad crossing, it was error to refuse to instruct, as requested by defendant, that a higher degree of care is required of a traveler on a highway to avoid trains at a crossing where the view is obstructed, than otherwise, where the court had instructed that a higher degree of care was imposed on the company in such case.

10. An instruction given for a plaintiff or defendant, properly defining only the duty of the opposite party towards him, arising out of a supposed state of facts, and not stating the duty the law imposed on him under the same circumstances, is not necessarily objectionable because it does not state the whole law of the subject.

11. When no ground of objection is stated to the giving of instructions, either in the petition or the brief, an assignment of error based thereon will not be considered.

Error to hustings court of Portsmouth.

Action by Francis Rieger against the Atlantic & Danville Railway Company, In trespass on the case, for damages for personal injuries. From a judgment in favor of plaintiff, defendant brings error. Reversed.

A. P. Thom, for plaintiff in error.

Murdaugh & Marshall, for defendant in error.

BUCHANAN, J. Under the decisions of the court in the cases of Railroad Co. v. Sherman's Adm'r, 30 Grat 602, 606, Rail road Co. v. Harman's Adm'r, 83 Va. 553, 8 S. E. 251, and Railroad Co. v. Joyner's Adm'r, 92 Va. 354, 23 S. E. 773, each count in the declaration was sufficient, and the demurrer thereto was properly overruled.

The defendant made a motion (which was overruled) to have the cause removed, under section 3316 of the Code, from the corporation court of the city of Portsmouth to the circuit court of the county of Norfolk, on the ground that a general prejudice or ill feeling existed in that city against the defendant. The evidence offered to sustain the motion showed that the Atlantic & Danville Railway Company had entered into a contract with the city of Portsmouth, by which, in consideration of a subscription of $150,000 of the bonds of the city to the stock of the railroad company, it had agreed to make its tide-water terminus in the city, and there locate and maintain its general offices and shops; that afterwards, when the works and property of the railroad company were sold under proceedings to foreclose a mortgage thereon, a new company (the defendant) was formed, with the same name as the old company; that it removed the terminus, offices, and shops from the city of Portsmouth, claiming that it was not bound by the contracts of its predecessor; that the city had thus lost the consideration for which it executed its bonds; and that by reason of this action of the defendant company there was great prejudice, or, rather, a widespread feeling of indignation, against it

The fact that such a feeling existed in a community against one of its citizens, or a corporation which had done or was doing business there, might be sufficient to show the difficulty, if not the improbability, of getting an impartial jury from among its citizens to try a cause involving the conduct which produced the indignation; but it does not show a sufficient ground for the removal of a cause in which the same person is one of the parties, when the case does not involve, or have any connection with, the conduct which produced the indignation; and especially is this so when the witnesses by whom the feeling against the party is shown express the opinion that a perfectly fair and impartial jury can be had in the city to try the case.

The court, upon overruling the motion for a change of venue, directed a special jury to be summoned; and from those summoned a jury was obtained, free from legal objection. It was held in Wright's Case, 33 Grat. 880, and in Joyce's Case, 78 Va. 287, that, where a motion to change the venue has been made and overruled, the fact that a Jury free from legal objection was afterwards obtained was conclusive evidence that the motion was properly overruled. Whether the court can properly look to subsequent proceedings in the cause to determine whether such a motion was properly overruled, it is not necessary to decide in this case, asthe action of the court was clearly right upon the evidence before it when the motion was heard and decided.

While Jesse C. Bain, one of the persons summoned on the special jury, was, by permission of the court, being examined by counsel, in the presence of the court on his voir dire, to ascertain whether or not he was free from just cause of exception, counsel for defense asked him whether he was prejudiced against corporations, but the court refused to permit the question to be answered. This action of the court is assigned as error.

This was not, in our opinion, a proper question to be asked in an examination of the juror on his voir dire. Code, § 3154. See Richardson's Adm'x v. Bank (Va.) 26 S. E. 413; 1 Thomp. Trials, 73; Balbo v. People, 80 N. Y. 484, 498. But, if it were, it does not appear that any injury resulted to the defendant from the court's refusal to permit it to be answered. Where a question is asked, and the witness is not permitted to answer it, in order to have the court's action reviewed by an appellate court the record must show what the party expected or proposed to prove by the witness. The same rule applies in the examination of a juror on his voir dire; the reason being in both cases that a judgment will not be reversed because evidence has been excluded or rejected by the trial court, unless its materiality be made to appear. Insurance Co. v. Pollard (Va.) 26 S. E. 421, 423, 424, and cases cited; Com. v. Trefethen, 157 Mass. 180, 31 N. E. 961.

The record not only fails to show that the defendant did expect, or had any reason to expect, an affirmative reply to his question, but it tends to show that the witness, if permitted to answer, would have replied that he had no such prejudice.

Assignment of error No. 4 is based upon bill of exceptions No. 3, which is as follows (omitting the formal parts):

"After the jury were sworn to try the issue joined in this case, and the plaintiff had introduced, as a witness to sustain the issue on his part, one F. S. Hope, and he had, after the first cross-examination by defendant's counsel, been re-examined by plaintiff's counsel, and was, notwithstanding the objection of counsel for plaintiff, by permission of the court, being recross-examined by counsel for defendant, as will appear from a transcript of his testimony included in bill of exceptions No. 11, which is hereby referred to and made a part of this bill of exceptions, the defendant's counsel undertook to ask the witness a question, which the court, without knowing what the question was, would not permit the counsel for the defendant to ask. And thereupon counsel for defendant asked permission to state the question to the court, in order that the court might determine whether...

To continue reading

Request your trial
41 cases
  • Southern Railway v. Whetzel
    • United States
    • Virginia Supreme Court
    • January 12, 1933
    ...a highway crossing at grade first appeared in the Acts of 1893-94, pages 827, 828. This act was construed in Atlantic & D. Ry. Co. Reiger, 95 Va. 418, 28 S.E. 590, 593. In the opinion in that case Judge Buchanan "The object of the statute, as stated in its title, was to protect human life; ......
  • Railway Company v. Haley
    • United States
    • Virginia Supreme Court
    • March 19, 1931
    ...and (2) that the plaintiff himself should have been free from negligence which contributed to causing the injury. Atlantic & D. Ry. Co. Reiger, 95 Va. 418, 28 S.E. 590; Simons' Adm'r So. Ry. Co., 96 Va. 152, 31 S.E. 7; Norfolk & W. Ry. Co. Simmons, 127 Va. 419, 103 S.E. Since the enactment ......
  • Va.N Ry. Co v. Haley
    • United States
    • Virginia Supreme Court
    • March 19, 1931
    ...and (2) that the plaintiff himself should have been free from negligence which contributed to causing the injury. Atlantic & D. Ry. Co. v. Reiger, 95 Va. 418, 28 S. E. 590; Simons' Adm'r v. So. Ry. Co., 96 Va. 152, 31 S. E. 7; Norfolk & W. Ry. Co. v. Simmons, 127 Va. 419, 103 S. E. 609. Sin......
  • Southern Ry. Co v. Whetzel
    • United States
    • Virginia Supreme Court
    • January 12, 1933
    ...a highway crossing at grade first appeared in the Acts of 1893-94, pp. 827, 828. This act was construed in Atlantic & D. Ry. Co. v. Reiger, 95 Va. 418, 28 S. E. 599, 593. In the opinion in that case Judge Buchanan said: "The object of the statute, as stated in its title, was to protect huma......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT