Norfolk & A. Terminal Co v. Morris' Adm'x

• Decision Date: 11 June 1903
• Citation: 44 S.E. 719,101 Va. 422
• Court: Virginia Supreme Court
• Parties: NORFOLK & A. TERMINAL CO. v. MORRIS' ADM'X.

44 S.E. 719

101 Va. 422

NORFOLK & A. TERMINAL CO.

v.MORRIS' ADM'X.

Supreme Court of Appeals of Virginia.

June 11, 1903.

TRIAL — RECEPTION OF EVIDENCE — STREET RAILWAYS—NEGLIGENCE—CONFLICTING EVIDENCE.

1. The order in which evidence is introduced is a matter largely in the discretion of the trial court, and its judgment will not be reversed because evidence proper in chief was introduced in rebuttal.

2. It is the duty of a street car company, when its cars are standing at a stopping place for the reception of passengers, to use the highest degree of care to see that all passengers lawfully entering its cars get to a place of safety thereon before starting its cars.

¶ 2. See Carriers, vol. 9, Cent. Dig. § 1159.

3. Where the jury is properly instructed, its verdict upon conflicting evidence will not be disturbed.

Error to Law and Chancery Court of City of Norfolk.

Action by the administratrix of Morris against the Norfolk & Atlantic Terminal Company. Judgment for plaintiff. Defendant brings error. Affirmed.

The third instruction given by the court is as follows: "The court further instructs the jury that it is the duty of a street car company, when its cars are standing at a stopping place for the reception of passengers, to use the highest degree of care to see that all passengers lawfully entering its cars get to a place of safety thereon before starting its cars; and if they believe from the evidence that the defendant company startedits car when the decedent, Robert Morris, was lawfully entering the said car, and before he could get into a place of safety thereon, and that the fact that said decedent was so entering said car and had not gotten to a place of safety thereon at the time it was started was known to said defendant or its servants, or could have been known to them by the exercise of the greatest care, and that his death was caused by the failure of said defendant to exercise such care, then they should find for the plaintiff, unless they should believe from the evidence that said Morris was guilty of negligence which contributed to the injury."

Harry L. Lowenberg, for plaintiff in error.

Green, Withers & Green, for defendant in error.

KEITH, P. Morris' administratrix sued the Norfolk & Atlantic Terminal Company to recover damages for the death of her intestate, which it is alleged was caused by the negligence of the defendant company. There was a verdict and judgment against the company, to which, upon its petition, a writ of error was awarded.

The first error assigned is to the ruling of the trial court under the following circumstances:

The defendant company, to maintain the issue upon its part, introduced George C. Reid, who, having been examined in chief, upon cross-examination by plaintiff's counsel was asked the following question: "Did this car give any signal before it started?" Defendant objected to this question on the ground that it referred to a matter not testified to by witness on direct examination, whereupon counsel for plaintiff said they would make witness their own. Defendant then objected on the ground that it was not the "proper time for the introduction of other witnesses on behalf of plaintiff, as defendant was not through with its witnesses, and that in no event could plaintiff introduce other witnesses to testify except in rebuttal." These objections were overruled, and the witness was permitted to answer the question.

This is no ground for reversal. In Flick v. Commonwealth, 97 Va. 7G6, 34 S. E. 39, it was held that the order in which evidence is introduced is a matter largely in the discretion of the trial court, for which this court will not reverse the judgment of the trial court save in very exceptional cases. It will not reverse merely because evidence proper in chief was introduced in rebuttal.

The second bill...