Danville St.-car Co v. Watkins

• Decision Date: 18 January 1900
• Citation: 34 S.E. 884,97 Va. 713
• Parties: DANVILLE STREET-CAR CO. v. WATKINS.
• Court: Virginia Supreme Court

34 S.E. 884

97 Va. 713

DANVILLE STREET-CAR CO.

v.WATKINS.

Supreme Court of Appeals of Virginia.

Jan. 18, 1900.

STREET RAILROADS—STREET-RAILWAY CROSSINGS—INJURY FROM LOW TROLLEY WIRE —CONTRIBUTORY NEGLIGENCE.

1. Where plaintiff, a brakeman on a railroad crossed by an electric street railway, knew that the trolley wire sagged so low that it was necessary to stoop in order to pass under it with safety while on the top of the car, his ignorance of the danger attending contact with an electric wire in no way excused his fault in failing to exercise that reasonable care which would have enabled him to pass beneath the wire with safety.

2. An instruction that, though plaintiff was guilty of negligence that contributed to the accident, he could recover if the defendant, the street railway, could have, by ordinary diligence, avoided the accident, was not applicable to the facts.

3. Where a brakeman on a railroad crossed by defendant electric street railway attempted, in the performance of his duties, to pass from one car to another, while passing under the defend-ant's trolley wire, and was struck by the wire, which sagged to within a few feet of the top of the car, he cannot recover for such injury, though the defendant was negligent in so maintaining its wire over the railroad.

Error to corporation court of Danville.

Action by one Watkins against Danville Streetcar Company. From a judgment for plaintiff, defendant brings error. Reversed.

Berkeley & Harrison and Christian & Christian, for plaintiff in error.

Thos. Hamlin, for defendant in error.

KEITH, P. The defendant in error sued the Danville Street-Car Company for an injury sustained under the following circumstances:

The Southern Railroad Company has a side track extending from its depot, on the northeast side of Craghead street, in the city of Danville, across the said street. The Danville Street-Car Company has a track running along Craghead street, which crosses the Southern Railroad at grade. The street-car line is operated by electricity, by means of a trolley wire. At the point where this trolley wire crosses the railroad track it had sagged, so that the distance between the wire and the top of the railroad car was only 2 feet 8 inches. Defendant in error was, at the time of the accident, a brakeman in the employment of the Southern Railroad Company. From his own evidence, it appeal's that it was his duty "to couple and uncouple, and sidetrack, and set brake, and take brake off. My principal duty was to follow the rear end of cars in shifting them back towards streets, on top of the cars or on the ground, whichever was necessary." In the discharge of his duty, he had frequently crossed this street, and was familiar with the position of the wire, and knew that it was necessary to stoop in order to pass under it with safety, though there is evidence tending to prove that, upon the occasion of the accident, it was unusually low, due to the fact that the poles by which it was supported had given way to some extent. At about 7:40 upon the evening of the accident Watkins was standing upon the shelf just under the brake, and about two feet from the top of the car. He had applied the brake, and was moving to apply another brake upon the adjoining car, when he came in contact with the wire, was knocked from the car, and received the injuries, for which he sues.

The essential facts are that he knew the position of the wire; that the wire was 4 feet 8 inches above the step upon which he stood, so that, by stooping, he might easily have passed under it with safety. There being evidence of negligence upon the part of the street-car company in permitting its wires to sag, as was done in this case, and evidence of contributory negligence upon the part of the plaintiff in failing to exercise proper precaution to avoid contact with the wire, the position of which was well known to him, it became necessary for the court to instruct the jury—First, as to the consequences of the defendant's negligence; and, secondly, as to the contributory negligence on the part of the plaintiff.

While the defendant excepted to all the instructions given at the instance of the plaintiff, the error in granting No. 8 seems to be insisted upon. It is as follows:

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