Braswell v. Virginia Electric Co.

• Decision Date: 22 March 1934
• Citation: 162 Va. 27
• Parties: O. E. BRASWELL, ADMINISTRATOR, ETC., v. VIRGINIA ELECTRIC AND POWER COMPANY.
• Court: Virginia Supreme Court

Page 27

162 Va. 27

O. E. BRASWELL, ADMINISTRATOR, ETC., v. VIRGINIA ELECTRIC AND POWER COMPANY.

Supreme Court of Virginia, Richmond.

March 22, 1934.

Present, All the Justices.

1. AUTOMOBILES — Incredible Evidence — Whether a Street Car a Block Away Was Coming or Going — Case at Bar. — The instant case arose out of a collision of a street car with a motorcycle. The court was asked to believe something counter to the common experience of men, that the driver of the motorcycle, driving slowly, could not tell whether a lighted street car, less than a block away, was coming or going, merely because there was no headlight burning.

Held: That while one cannot tell in which direction a street car is moving if he sees it down the track and far away, yet any man who has ever stood in a safety zone at a crossing can tell whether a street car a block away is coming or going.

2. VERDICT — Setting Aside Verdict — Section 6363 of the Code of 1930 — Verdict Supported by Some Evidence. — Under section 6363 of the Code of 1930, a jury's verdict may be set aside when "it appears from the evidence that such judgment is plainly wrong or without evidence to support it." That is to say, it may be set aside for either of two reasons; it may be set aside when it is without evidence to support it, and it may be set aside when it is plainly wrong even if it is supported by some evidence.

3. APPEAL AND ERROR — Weight of Verdict — Verdict Disapproved by Trial Judge. — A verdict which has been disapproved by the trial judge is not entitled to the same weight on appeal as one that has been approved by him.

4. APPEAL AND ERROR — Weight of Verdict — Verdict Disapproved by Trial Judge. — The very fact that the trial judge is given the power to set aside a verdict as contrary to the evidence necessarily means that he must, to some extent at least, pass upon the weight of the evidence.

5. VERDICT — Setting Aside Verdict — Sections 6251 and 6363 of the Code of 1930. — When to enter judgment upon the verdict of a jury would strain the credulity of the court to the breaking point, and requre the entry of a judgment contradicted by every other fact and circumstance of the case, in conflict with the testimony of numerous witnesses of high character, and manifestly against right and justice, the court may set aside the verdict.

6. VERDICT — Setting Aside Verdict — Sections 6251 and 6363 of the Code of 1930. — Where it can be seen from the evidence as a whole that the verdict has recorded a finding in plain deviation from right and justice, the court may, indeed should, set it aside.

7. VERDICT — Setting Aside Verdict — Verdict Plainly Wrong. — In setting aside a verdict as contrary to the evidence, neither the Supreme Court of Appeals nor the trial court sits with the jury to pass upon the preponderance of evidence. It is only when the verdict is plainly wrong that it should be set aside.

8. STREET RAILWAYS — Automobiles — Action Arising out of Collision between Street Car and Motorcycle — Duty of Passenger to Warn Driver — Case at Bar. — The instant case arose out of a collision between a street car and a motorcycle. It was contended that even if the driver of the motorcycle was negligent, his passenger was not. The passenger saw the approaching car and made no protest. If it is conceded that no duty rested upon the passenger to caution the driver of the motorcycle, it could have no effect upon the results of the trial. Neither the gong nor the headlight of the car could have given the driver any additional information, and the defendant could not be punished because of their absence, unless their absence proximately contributed to the accident.

9. NEGLIGENCE — Negligence Must be Proximate Cause of Accident. — A plaintiff cannot rest when he has shown that the defendant is negligent. He must show that the negligence proximately contributed to the accident.

10. AUTOMOBILES — Negligence — Three Men Riding upon a Single-Seated Motorchcle. — It is negligence for three men to ride upon a single-seated motorcycle, and it is particularly dangerous for it to turn with such a load unless the bodies of the riders sway in unison.

11. STREET RAILWAYS — Right of Motorman to Assume that Vehicle on the Track Would Get off the Track — Case at Bar. — The instant case was an action arising out of a collision of a street car with a motorcycle. A motorman, who sees a vehicle approaching, has a right to assume that it will get off the street car track, as the motorman cannot. In the instant case, when it appeared that it probably would not get off the track, he brought his car to a stop and that is all that he could do.

12. AUTOMOBILES — Street Railways — Collision between Street Car and Motorcycle — Case at Bar. — In he instant case the driver of a motorcycle, laughing and heedless, ran headlong into a street car which had come to a stop or was in the act of stopping; he alone was responsible for the tragedy which resulted in the death of two passengers riding on the motorcycle. The two deaths told of his speed. The driver's negligence was the sole proximate cause of the accident. It is not enough to show that the street car company was negligent when that negligence but remotely and not proximately contributed to the result.

Held: That the action of the judge of the trial court, who saw the witnesses and heard them testify, in setting aside a verdict for plaintiff, the administrator of one of the decedents, should be sustained.

Error to a judgment of the Circuit Court of the city of Richmond, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

Thomas A. Williams, L. C. O'Connor and George G. Burkhardt, for the plaintiff in error.

T. Justin Moore, Archibald G. Robertson and Norman L. Flippen, for the defendant in error.

HOLT, J., delivered the opinion of the court.

Plaintiff's decedent was killed when a motorcycle on which he rode came into collision with one of the defendant's street cars. His administrator has recovered a verdict for $2,500. That verdict the trial court set aside. Its action is challenged and the case is now before us on a writ of error.

The accident occurred in South Richmond on Hull street, just before 8 o'clock on December 13, 1930. Hull street runs north and south and numbered streets, whose numbers increase to the south, cross it at right angles. Cars pass in each direction on a single track which is not in the center of Hull street, but is somewhat nearer the western curb. The street, from curb to curb, is forty feet wide and the western rail of the car track is about twelve feet from its western curb.

Since the verdict was set aside because not adequately supported by the evidence, it is necessary that the evidence be examined.

On the night in question, J. C. Bohannon, a witness, and Denis LaPrade rode south on a motorcycle and stopped about a fourth of a block north of 39th street. Bohannon got off and decedent and Noel Dorset got on. LaPrade drove; behind him sat Braswell on the mudguard and behind Braswell on the mudguard sat Dorset. Braswell held on to the seat and Dorset put his arms around Braswell. They started off at a speed estimated to be from five to eight miles an hour and had gotten just beyond 39th street when the witness turned and started walking north towards Richmond, and had gone somewhere between thirty and fifty feet when he heard a crash to which he did not pay much attention. A small boy ran by him and said: "There's an automobile wreck. Three fellows ran into a street car." Bohannon then turned and ran to the point of accident, which was about a block and a half away. He said that the north end of the car was from forty-five to fifty feet from the corner of 40th street and that the motorcycle lay against the curb about twenty feet south of its north end. The bodies of the youths had just been taken away. He tells us that there was an automobile parked by the west curb of Hull street somewhere between forty-five and sixty feet north of 40th street. No headlight was burning on the north end of the street car. On cross-examination he said that he might have told Mr. Vaughan, the defendant's claim agent, that he first met Dorset and Braswell between 37th and 38th streets, that he "wasn't positive at that time where it was." The motorcycle was out of condition and would not make more than fifteen or twenty miles an hour.

D. R. Bowlin, another witness, was driving a truck south on Hull street. He saw a motorcycle stop between 39th and 40th streets about in front of 3905 Hull street. One boy got off and two got on. They drove south on Hull street about three-quarters of a block when they cut around to the left to avoid a parked automobile and hit the street car. He said that that car had no headlight and he thought it was going the other way. As he remembers the physical facts the north end of the street car stood fifteen feet north of the north curb of 40th street, while the motorcycle and the bodies of the boys were four or five feet past its front end. The headlight of the motorcycle was still burning. He cut it off, moved the machine over, and helped to move the bodies.

W. O. Eggleston reached the point of accident soon after the collision. He said that the street car had passed 40th street, that it had cleared the intersection, but does not undertake to say how far away it was; that the motorcycle was about two feet to the right of the front of the car; that one of the boys had been taken away and the bodies of the other two lay between the car and the sidewalk, "just past the motorcycle a little way."

N. E. Norwood lives at 3910 Hull street, which is in the middle of the 3900 block and about a block and a half from the point of the accident. He was getting into his car at the time it occurred and drove up. There was no headlight burning on the street car. It had passed 40th street and was near the corner but ...