Harman v. Appalachian Power Co.
| Decision Date | 26 October 1915 |
| Docket Number | 2872. |
| Parties | HARMAN v. APPALACHIAN POWER CO. |
| Court | West Virginia Supreme Court |
Submitted September 28, 1915.
Syllabus by the Court.
It is not erroneous to refuse to submit to a jury either of two interrogatories, an affirmative answer to one of which would necessarily be a negative answer to the other and decisive of the issue.
Erroneous rulings respecting instructions are treated as harmless, if an answer to an interrogatory and an instruction given make it apparent that the jury has specifically found a fact conclusively giving the right awarded by their verdict. There is no exclusive test of harmless error. Anything conclusively showing lack of prejudice in the trial suffices.
Numerical preponderance of the witnesses in favor of one party, in the trial of an issue wholly dependent upon oral evidence, does not make it the duty of the court to instruct the jury to give credence to the greater number of witnesses; and instructions to do so, "all other things being equal," or the witnesses having "equal opportunities for seeing, equal accuracy in observation and memory, and equal capacity and desire for telling the truth," are properly refused.
Error to Circuit Court, Mercer County.
Action by Mary E. Harman against the Appalachian Power Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Sanders Crockett & Kee, of Bluefield, for plaintiff in error.
Robt. E. Scott, of Richmond, Va., and Russell S. Ritz, of Bluefield, for defendant in error.
The judgment complained of is for damages for injuries to the plaintiff, alleged to have been occasioned by the negligence of the defendant in the operation of its street railway. She alleges and testifies that, on a certain day, after having boarded one of its cars and paid her fare, she requested the conductor thereof to stop the car and let her off at a certain church, and that after it had stopped, and while she was in the act of alighting, having one foot on the step and the other on the pavement, the car was suddenly started, in consequence whereof she was violently thrown to the pavement and her arm broken and other injuries inflicted. In this statement, she is not sustained by the testimony of any other witness, but is contradicted by several who claim to have been present on the occasion of her alleged injury. Nevertheless, the jury rendered a verdict in her favor for the sum of $500, and judgment was rendered thereon.
The assignments of error, relied upon in the argument, relate to rulings upon instructions given and refused, a request for a certain interrogatory, and the motion to set aside the verdict. Some of the instructions, as to which complaint is made, relate to the alleged contributory negligence of the plaintiff, the principal matter of defense, and others to the method by which the jury should dispose of the conflict in the testimony. The interrogatory which the court refused to propound would have required the jury to say whether the car was in motion at the time the plaintiff stepped from it. Although refusing this one, the court granted another requiring the jury to say whether it had come to a stop before she endeavored to get off.
That the plaintiff fell in the street as she alighted from the car is put beyond question by the testimony. Whether she left it while it was in motion, or after it stopped, was the vital issue in the case, and the only important one. Her testimony to the effect that it had stopped, and had been so started again, is not inconsistent with any undisputed or established fact. While she is contradicted by ten other persons, who say they witnessed the transaction, the conflict is limited to oral testimony. If what she states is correct, the statements of all the other witnesses are untrue. Most of them say the car did not stop at all at the place in question, but went on to the end of the line, not far distant from that point. All say she got off while it was moving, some that she stepped off, and others that she jumped off. The conductor says he took her by the arm and endeavored to prevent her exit, and in this he is corroborated by some of the other witnesses. She denies it saying he neither took hold of her nor warned her against alighting. The plaintiff's husband and another witness say the conductor told the former, on the day of the accident and shortly afterwards, she had stepped off of the car backwards after it had stopped.
Instruction No. 1, given for the plaintiff, after an apt hypothetical statement of her case, directed the jury to find for her, if they should believe she had proved it; and her instruction No. 2, that she was not required to exercise more care than is usual under similar circumstances, among careful persons of the class to which she belonged, in order to escape the defense of contributory negligence. Instruction No. 4, given at the instance of the defendant, told them it was incumbent upon her to prove by a preponderance of the evidence that she was injured in the manner charged in her declaration, the sudden starting of the car after it had stopped and that, if they should believe the car had not stopped at the time and place alleged by her, they should find for the defendant. Defendant's instruction No. 1, if given, would have told them she had failed to prove a case of negligence; its instruction No. 2, to find for it, if they believed she had stepped off of the car, while it was in motion; and No. 3 that, if she undertook to alight while it was in motion and was hurt in doing so, she was guilty of contributory negligence and could not recover. Instructions Nos. 5, 6, and 7, which the court refused to give, would have advised them that, all other things being equal, they should give credence to the greater number of witnesses. No. 7, descending into particularity, would have told them to give preference to the testimony of the ten witnesses, if they believed all of the eleven had equal opportunity for seeing, equal accuracy of observation and memory, and equal capacity and desire to tell the truth.
Defendant's instructions Nos. 2 and 3 should have been given. It was entitled to have its theory of defense stated to the jury as plainly and positively as the court stated to them the theory of the plaintiff. In the absence of peculiar circumstances tending to excuse it, alighting from a moving car is contributory negligence as matter of law. Hoylman v. K. & M. Ry. Co., 65 W.Va. 264, 64 S.E. 536, 22 L.R.A. (N. S.) 741, 17 Ann.Cas. 1149; O'Toole v. Railroad Co., 158 Pa. 106, 27 A. 737, 22 L.R.A. 606, 38 Am.St.Rep. 830; Walters v. C. & N. Ry. Co., 113 Wis. 367, 89 N.W 140; Wood, Railroads, 1292; Hutch. Carriers, § 1180. Neither failure of the train to stop at the passenger's destination, nor its starting without allowance of time to get off, justifies the risk of injury in the attempt to get off, while it is moving. McDonald v. Railroad Co., 87 Me. 466, 32 A. 1010; Simmons v. Air Line, etc., R. Co., 120 Ga. 225, 47 S.E. 570, 1 Ann.Cas. 777. In this case there were no excusing or justifying circumstances, calling for qualifying matter in the instructions. While a court is not bound to repeat instructions, it may do so, and reference, in instructions...
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