Richmond-ash La No Ry. Co v. Jackson

• Citation: 162 S.E. 18
• Court: Supreme Court of Virginia
• Decision Date: 14 January 1932
• Parties: RICHMOND-ASH LA NO RY. CO. v. JACKSON.

162 S.E. 18

RICHMOND-ASH LA NO RY. CO.

v.JACKSON.

Supreme Court of Appeals of Virginia.

Jan. 14, 1932.

EPES, J., dissenting.

Error to Circuit Court of City of Richmond.

Notice of motion by Clara L. Jackson against the Richmond-Ashland Railway Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, and BROWNING, JJ.

Bernard C. Syme, of Petersburg, and Leon M. Bazile, of Richmond, for plaintiff in error.

Christian & Lamb, of Richmond, for defendant in error.

HOLT, J.

Designating the parties as they stood in the trial court, the defendant owns and operates an interurban electric line running between Ashland and Richmond, and of course through a part of that city. On November 7, 1929, plaintiff, a colored woman and passenger, boarded one of its cars to go to her home. This was a one-man car, operated by the motorman, who sat in what is described as a vestibule, the floor of which was a little below the floor of the car itself. As Lombardy street was reached, it stopped to let out some children, and as it started up plaintiff indicated her desire to get off at the next station stop which was on Du Bois avenue. When that was about a block distant she got up, went forward and stood on the vestibule platform by the door which, looking forward, was on her right, and steadied herself by holding on with her right hand to an upright bar put there for that purpose. In her left she held a small package.

If the plaintiff is to be believed, and manifestly the jury did believe her, she stood by this open car door which had, against the company's rules, been open since leaving Lombardy street. The stop at Du Bois street was so unexpectedly sudden that she was precipitated through it and thrown to the ground. She was stunned by the impact of her fall and bruised about her back and shoulders as she rolled upon the ground.

According to the contention of the defendant, the car came to a smooth stop and was standing still when she got off. It is suggested that she caught her heel in the car step, and was thereby thrown. However her fail was brought about, it is conceded that she was badly hurt. The amount of the verdict is not questioned.

This station platform appeared to have been a rectangular filled-in box, 12 or 14 feet long, made up of sills, and across its center at right angles to the car track ran another sill on which she fell. In her evidence, she said:

"Q. How far were you thrown from the car before your body stopped rolling, or did it roll at all?

"A. You see, it was so sudden. The platform is as wide as from here to that gentleman's foot. The bar is in the center. I was thrown on that heavy sill; that is where I got those severe cuts, one here and one here."

Elsewhere, "I rolled over."

A witness, Grace Cogbill, said this car was running at a rapid rate of speed. The brake-man said that he supposed that he was running at about 25 miles an hour before he reached this station. He had been talking to some man who stood at his left hand while the plaintiff stood at his right. Lula Brown said that the motorman was talking to this man when the car stopped. That is also the plaintiff's statement

She said that "when the car suddenly stopped it pitched me right forward, " and again that it "came to a very sudden stop." Lula Brown said that "she (the plaintiff) was standing there when the car stopped with such a jerk that it threw her forward"; and again, "it (the stop) was very sudden, so sudden that it threw me forward in the seat"; and again, "when the car stopped it jerked so I had to look out for myself, " and that the jerk of the stopping car was not an ordinary one.

Cases are not won and lost with adjectives, but the right of recovery lies in the nature and quality of the accident.

Naturally, an unsupported person standing in the vestibule would, in such circumstances, have been thrown forward, but in this case, the plaintiff, to steady herself, was holding with her right hand to an upright rod. Her hold was broken, but it was strong enough to deflect the forward motion of her body, and as a resultant of these two forces she was thrown violently through the open door. All of this is denied by the defendant in evidence amply strong to have sustained a verdict for it if credited by the jury.

Any detailed discussion of this conflict would be unfruitful. It has been decided by the jury, and their verdict has been sustained by the trial judge. It follows, of course, that we must also sustain it if it is supported by substantial evidence. It is so supported. It is not probable that she would have been thrown so violently if she had merely stumbled on the car step. And certainly, had she so stumbled, she would not have been apt to roll after striking the ground.

The brakeman, Mr. Swan, in the course of his direct examination, makes this significant statement:

"I opened the door after I stopped the car. In other words I used the brake handle with this hand (left) and the handle to the door with my right hand. After the car came to a stop, or just had stopped, I opened the door."

The car was controlled by air brakes, and to operate them a lifted finger is enough. It may reasonably be inferred that he was engrossed in conversation with the passenger who stood at his left, and so had momentarily lost sight of the fact that any one wished to get off. When he saw the plaintiff standing by him, manifestly for that purpose, he had already reached the station stop, and, because the stop there was necessary, instantly applied the full power of the brakes.

Certainly a railway is not to be held liable because its cars stop with some jerk. They usually do, but it is equally certain that they should not be run so rapidly and stopped so suddenly as to break the hold of passengers on supports provided to steady them, and to throw them so violently to the ground. Just where the line is to be drawn must, when there is any real conflict of evidence, of necessity, be left to the jury.

It may be said in passing that, had Clara Jackson merely tripped upon the step when the car stopped, she would have fallen upon her face, and could not possibly have bruised her back.

"It is generally held that a passenger makes out a prima facie case, or raises a presumption of negligence, against the carrier, by showing that, while riding in the vehicle, he was injured by its unusual or violent jerking, jolting, or stopping." Note 7 L. R. A. (N. S.) 1076.

It is true that many cases hold, and we think correctly, that, before there is any presumption of negligence, plaintiff must prove that the jar or jolt was unusual. We are cited to many cases so holding, and since it is conceded that this is a reasonable rule, we deem it unnecessary to discuss them. Some jolting is to be expected. That is usual in the operation of cars of this kind, and it is only when this jolting or jerking is so unusual that a person of ordinary prudence could not have anticipated it that negligence is to be presumed.

In Norfolk & Western R. Co. v. Ferguson, 79 Va. 241, it appears that the plaintiff took a seat in a chair near an open sliding door of the caboose of a freight train. He was thrown through that door when the train went around a sharp curve. The court held that he was guilty of contributory negligence and could not recover. If he was guilty of contributory negligence, of course the defendant was guilty of negligence also.

In Norfolk & Western Ry. Co. v. Rhodes, 109 Va. 176, 63 S. E. 445, 447, it appears that "the plaintiff was a passenger on the defendant's train, and received the injury complained of in going from his seat to the water-closet, which was near by. He testified that as he got up from his seat to start to the closet, the train 'lunged' or 'rocked' over towards and threw him against the closet door, and that it lunged or rocked back the other way, and, not being able to catch hold of anything, he fell and struck the back of the seat. He further testified that it seemed to him that the movement, at the time he was injured, was unusual and extraordinary, because it threw him forward and backward as it did, and that he had had no trouble before this in going through the trains upon which he had traveled."

The court denied a recovery and said:

"The mere fact that the plaintiff, who did not have hold of anything, was thrown or fell in the way he described does not show that the movement of the train was unusual. No one was to blame for the injury so far as the record shows. It was simply one of those unfortunate accidents which sometimes happen, for which the law holds no one responsible." Cars must lurch and so passengers assume that risk.

In the instant case, the plaintiff did have hold of a support for that purpose provided.

The court there lays down this general rule:

"The general rule is that the happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on the part of the carrier, and that (the passenger himself being in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human care and foresight."

It is in harmony with the rule stated in 7 L. R. A. (N. S.) 1076, supra.

In this (Rhodes) case the court, in its opinion, said:

" * * * The facts and circumstances attending the injury, as charged in the declaration, show that the movement of the train was so unusual and extraordinary as to break the plaintiff loose from his hold on the water-closet, and that the accident could not well have happened without negligence on the part of the carrier, and therefore raise a prima facie presumption of negligence on its part."

A demurrer to the declaration charging the facts thus stated was overruled. The plaintiff's failure to recover was not due to the fact that he failed to state a case, but to the fact that his proof did not measure up to his allegations.

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