Richmond Passenger & Power Co v. Gordon

• Decision Date: 10 March 1904
• Citation: 102 Va. 488,46 S.E. 772
• Court: Virginia Supreme Court
• Parties: RICHMOND PASSENGER & POWER CO. v. GORDON.

46 S.E. 772

102 Va. 488

RICHMOND PASSENGER & POWER CO.

v.GORDON.

Supreme Court of Appeals of Virginia.

March 10, 1904.

STREET RAILROADS — CROSSING ACCIDENT — NEGLIGENCE—INSTRUCTIONS—ERROR.

1. In an action against a street railroad for personal injuries by being struck by an electric car while driving across defendant's tracks, the plaintiff is entitled to recover where the motor-man could have avoided the accident by the use of ordinary care after he saw, or by the use of ordinary care might have seen, that the plaintiff was on, or very near, the track, and driving towards it, and was in danger of being struck by the car, though the plaintiff was guilty of want of ordinary care in attempting to cross the tracks.

2. In an action against a street railroad for personal injuries by being struck by an electric car while driving across defendant's tracks, where there is evidence that the case comes within the general rule as to contributory negligence, and also that the case comes within the exception to the rule, it is error to refuse a charge requested by defendant that there can be no recovery where the accident was caused by the concurrent negligence of the motorman and the plaintiff, due to each failing to keep a proper lookout.

3. A charge that it is not negligence, as a matter of law, to omit to look and listen for cars when one is about to cross the tracks of a street railway, but the question is "whether a man of ordinary prudence exercising ordinary care and prudence would have thought it unnecessary to do so, " contains a proper definition of ordinary care.

4. Where the evidence in an action against a street railroad for personal injuries by being struck by a car while driving across defendant's track raised the questions of negligence and contributory negligence, a charge correctly stating the law as to the burden of proof on those questions cannot be regarded as abstract, or as tending to mislead the jury.

Error to Law and Equity Court of City of Richmond.

Action by John W. Gordon against the Richmond Passenger & Power Company. From a judgment for plaintiff, defendant appeals. Reversed.

Henry Taylor, Jr., for appellant.

Meredith & Cocke, for appellee.

BUCHANAN, J. This action was instituted by John W. Gordon to recover damages for injuries done him at a street crossing in the city of Richmond by the alleged negligent running of an electric street railway car operated by the Richmond Passenger & Power Company.

Upon the trial of the cause the plaintiff asked for eight instructions, and the defendant for three. All the instructions asked for were given as asked, or with such modifications as the court saw proper to make. No objections are made here to instructions numbered 2, 3, 4, 5, and 8 given for the plaintiff, nor to instruction "a" given for the defendant. The assignments of error chiefly relied on are the giving of the plaintiff's instruction No. 7, and the refusal of the court to give the defendant's instructions "b" and "c" as asked, and in giving them as modified by the court.

The following is a copy of instruction No. 7:

"If the jury find that the plaintiff was guilty of want of reasonable and ordinary care in attempting to cross the tracks of the defendant under the circumstances referred to, then he is not entitled to recover, unless they believe from the evidence that the motor-man could have avoided the accident by the use of ordinary care after he saw, or by the use of ordinary care might have seen, that the plaintiff was on the track, or very near thereto, and driving towards the same, and was in danger of being struck by the car; and, if they shall so believe, then they must find for the plaintiff."

The objection made to that instruction is, first, that there was no evidence to show that the motorman could have avoided the accident by the exercise of ordinary care after he saw the plaintiff's peril; and, second, that the proposition that they must find for the plaintiff if the jury believed that the motor-man might, by the exercise of ordinary care, have seen the plaintiff's peril, and avoided the accident, is not law.

There is no evidence that after the motor-man saw the plaintiff's danger he could have avoided the accident; but there is evidence tending to prove that, if the motorman had been exercising ordinary care as his car approached the crossing, he could have seen the plaintiff's peril in time to have prevented the injury. There is evidence tending to show that the plaintiff, as he drove along Floyd avenue towards the crossing where that avenue intersects Harrison or Beech street, stopped or checked the one-horse vehi cle in which he, his wife, and son were riding about 40 feet from the crossing at the time a north-bound street car crossed Floyd avenue, and that he then proceeded towards the crossing; that the north-bound car passed the car going south, which did the injury, from 60 to 75 feet north of Floyd avenue; that from that point there was nothing to prevent the motorman on the south-bound car from seeing the plaintiff's vehicle as it approached the street car track; that from the point where the cars passed each other to the point where the plaintiff's vehicle was struck was 100 feet or more; that a car running at the rate of 6 or 7 miles an hour, as the motorman said his car was running, could, under favorable circumstances, be stopped in about a car length, which was shown to be about 35 feet, and that the car was actually stopped in about 45 feet after the motorman saw the plaintiff's vehicle. This evidence was sufficient to justify the court in giving the instruction in question, under a long line of decisions of this court.

In the case of R. & D. R. R. Co. v. Anderson, 31 Grat. 812, 31 Am. Rep. 750, decided a quarter of a century ago, it was held, Judge Burks delivering the opinion of the court, that, though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse the defendant. To sustain the conclusion reached in that case the learned judge approved and followed the decision of the House of Lords in the case of Radley v. London, etc., Ry. Co., 1 App. Cases (Law Rep. 1875-76), 754, 759, which cites and affirms Davies v. Mann, 10 M. & W. 545, and Tuff v. Warman, 5 C. B. N. S. 573.

In the case of Marks, etc., v. Petersburg R. R. Co., 88 Va. 1, 10, 13 S. E. 299, which was an action for damages for causing the death of a traveler at a street crossing by the defendant railroad company's cars, it was said by Judge Lewis, in discussing the subject of contributory negligence: "If a person attempts to cross a railroad at a highway crossing without using his senses of sight and hearing, even though the company be negligent, the law, as well as common prudence, condemns his act as careless. But this is a mere presumption, which may be repelled by evidence showing that the case is within one or more of the exceptions to the general rule before mentioned. In the absence of such evidence, however, the contributory negligence of such person, when injured, will preclude a recovery, unless the company might, by the exercise of ordinary care on its part, have avoided the consequences of the plaintiff's negligence." "This qualification of the doctrine of contributory negligence, " he continues, "is laid down in the leading case of Tuff v. Warman, 2 C. B. (N. S.) 740, and so often recognized by tills court." After citing a number of the decisions of this court, he adds: "Applying this test to the present case, we are of opinion that the plaintiff is not entitled to recover, for it is manifest that ordinary care on the part of the defendant could not have discovered the negligence of the deceased in time to avoid the accident."

In the case of the Seaboard, etc., R. R. Co. v. Joyner, 92 Va. 354, 23 S. E. 773, this court, in considering the question of the duty of a railroad company to avoid injuring a trespasser, said: "The law upon this subject is, we think, properly stated in the ninety-ninth section of Shearman & Redfield on the law of Negligence (4th Ed.), where it is said that: 'The plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was proximately caused by the omission of the defendant after having such notice of the plaintiff's danger as would put a prudent man on his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if he have sufficient notice or belief to put a prudent man on the alert and he does not take such precautions as a prudent man would take under similar notice or belief.' " To the same effect is Tucker's Case, in 92 Va. 549, 24 S. E. 229, and Dunnaway's, in 93 Va. 29, 3G, 37, 24 S. E. 698.

In the case of B. & O. R....