Portsmouth St. R. Co v. Peed's Adm'r

• Decision Date: 16 June 1904
• Citation: 102 Va. 682,47 S.E. 850
• Parties: PORTSMOUTH ST. R. CO. v. PEED'S ADMINISTRATOR.
• Court: Virginia Supreme Court

47 S.E. 850

102 Va. 682

PORTSMOUTH ST. R. CO.

v.PEED'S ADMINISTRATOR.

Supreme Court of Appeals of Virginia.

June 16, 1904.

STREET RAILROADS — NEGLIGENCE—DEATH—ACTION — DAMAGES — INSTRUCTIONS — PLEADING—WITNESSES—REFRESHING MEMORY.

1. Where a declaration is in two counts, and there is evidence to sustain one of them, so that defendant cannot demur to the evidence, and the one not sustained by the evidence is good in form, the court, on request of defendant, should instruct the jury to disregard the count not sustained.

2. Where, in an action against a street railroad for the death of one killed by being run over by a car, the negligence alleged in the declaration was excessive speed, it was error to instruct on failure to give warnings.

3. Code 1887, § 3384, declares that where there appears to be a variance between the declaration and proof, there may be an amendment of the declaration, if it will not prejudice the opposite party, or the jury may find the facts, and the court give judgment according to the right of the case. Held that, in case of a variance between the evidence and allegations, the correct practice is to object to the evidence when offered, or move to exclude it; the attention of the court being thereby called to the variance, and an opportunity afforded to meet the emergency under the statute.

4. It is proper to refuse an instruction where there is no evidence to support it.

5. In an action against a street railroad for the death of one run over by a car, an instruction that failure to look for an approaching car by a person about to cross a street railway track, especially at a street crossing, was not negligence, as a matter of law—the street car having no superior right to that of a pedestrian, and the question being whether a prudent person, acting prudently, would have thought it necessary to do so—was erroneous, as misleading.

6. While, generally speaking, one who is about to cross a street railroad should look and listen for cars, it is not an inflexible rule; and the question is whether a prudent man, acting prudently, would have thought it unnecessary to do so.

¶ 6. See Street Railroads, vol. 44, Cent. Dig. § 208.

7. Where, in an action for death, there is no evidence of payment by plaintiff of doctors' bills and burial expenses, an instruction authorizing their recovery is erroneous.

8. In an action for death, evidence that deceased left a family, and followed a trade which gave practically constant employment, is sufficient to warrant an instruction that the jury, in estimating the damages for his death, may take into consideration compensation for the loss of his care, attention, society, and comfort to his family, and for solace to them for the sorrow, suffering, and mental anguish occasioned by his death.

9. In an action against a street railroad for the death of one run over by a car, plaintiff's evidence showed that deceased was walking outside defendant's track, with his back turned to an approaching car, when he attempted to cross the track, and that he had not taken more than two steps when he was struck, and that he was deaf. Defendant requested an instruction that it was the duty of a person approaching a street car track to exercise the care which ordinarily prudent persons would exercise, and make such use of his faculties as ordinarily prudent persons would make use of under the circumstances, and that, if such person were deaf, it was more incumbent on him to exercise his sight, and that if deceased failed to exercise such care, and his failure contributed to theaccident, the jury should find for defendant. The instruction was given, with the addition that if the jury further found that the motor-man saw or might have seen deceased go on the track, or approach it with apparent intention to cross it, and thereafter used ordinary care to stop the car, they should find for defendant. Held, that defendant was entitled to the instruction, and its modification was error.

10. It was error to refuse the charge that, if deceased stepped in front of a moving car of defendant when the car was so close on him that a collision could not be avoided by the utmost care on the part of defendant's servants, the jury must find for the defendant.

11. In an action for the death of one run over by a street car, it was not error to receive testimony of a witness objected to as giving the rate of speed 80 feet from the scene of the accident.

12. The testimony of the witness was not inadmissible because of the fact that at the time he observed the car he was in his storehouse, 25 feet from the door.

13. A witness may be allowed to refer to the stenographic report of his evidence at a former trial for the purpose of refreshing his memory.

14. Stenographer's notes of testimony on a former trial may not be referred to for the purpose of contradicting a witness.

Error to Hustings Court of Portsmouth.

Action by the administrator of Leroy L. Peed against the Portsmouth Street Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Richard B. Tunstall and T. J. Wool, for plaintiff in error.

John W. Happer and Frank L. Crocker, for defendant in error.

WHITTLE, J. On the afternoon of March 3, 1899, plaintiff's intestate, Leroy L. Peed, while attempting to cross Crawford street at or near its intersection with Columbia street, in the city of Portsmouth, was struck by a passing car of the defendant company, receiving injuries from which he died. Thereupon the defendant in error instituted this action against the plaintiff in error to recover damages for the alleged negligent killing of his intestate, which resulted in the judgment now under review.

The declaration contains two counts. The first count alleges that the accident was due to the negligence of the defendant in running its cars "at such a great, high, and rapid rate of speed as to become thereby unmanageable aud incapable of being stopped when occasion for stopping the same should arise, " whilst the second count attributes the accident to the negligence of the defendant in failing to equip its cars with suitable fenders.

At the trial, after the evidence had closed, the defendant moved the court to strike out an ordinance of the city of Portsmouth with respect to car fenders, on the ground that there was no evidence tending to show a failure of duty on the part of the defendant in that regard, which motion the court sustained. Whereupon the defendant submitted a further motion that the jury be instructed to disregard the second count of the declaration, as there was no evidence to support it, which motion the court overruled. Sustaining the second motion was a corollary to granting the first, and the court erred in overruling it.

The jury returned a general verdict, and It cannot be affirmed that their finding was not influenced by the ruling of the court with respect to the second count, notwithstanding the fact that there was no evidence to sustain it. The court, in the presence of the jury, had refused to instruct them to disregard the count, and they may naturally have interpreted that ruling to mean that they must regard it.

The only remedy which a defendant has in such case is to move the court to instruct the jury to disregard the unsustained count. Being unobjectionable in form, it is not amenable to demurrer; and the defendant cannot demur to the evidence where, as in this case, there is another count in the declaration with some evidence tending to uphold it. The...