Richmond Ry. & Electric Co v. Hudgins

• Decision Date: 12 June 1902
• Citation: 100 Va. 409,41 S.E. 736
• Court: Virginia Supreme Court
• Parties: RICHMOND RY. & ELECTRIC CO. v. HUDGINS.

41 S.E. 736

100 Va. 409

RICHMOND RY. & ELECTRIC CO.

v.HUDGINS.

Supreme Court of Appeals of Virginia.

June 12, 1902.

STREET RAILROADS—NEGLIGENCE—PRESUMPTION FROM ACCIDENT—CONTRIBUTORY NEGLIGENCE.

1. Where plaintiff's horse was frightened by a loud and unusual noise proceeding from an electric car, and a volume of smoke issuing therefrom, and the horse ran away, and plaintiff was injured, an instruction that it the horse was frightened by the.noise and the smoke, and such noise and smoke was not incident to the ordinary operation of the cars, it raises a presumption that such noise and smoke would not have been caused if defendant had used proper care in relation to the machinery of the car, and, in the absence of an explanation, the jury may infer that defendant was guilty of negligence, was properly given.

2. Where unusual noise and smoke issuing from a street car frightened plaintiff's horse, and plaintiff was thrown from his wagon and injured, defendant cannot excuse its own negligence or want of proper care by showing that plaintiff failed to exercise the presence of mind) required under such circumstances.

Error to law and equity court of city of Richmond.

Action by G. W. Hudgins against the Richmond Railway & Electric Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Geo. Ainslie and Henry Taylor, Jr., for plaintiff in error.

W. R. Meredith and Wise & Watkins, for defendant in error.

CARDWELL, J. G. W. Hudgins brought his action of trespass on the case against the Richmond Railway & Electric Company, in the law and equity court of the city of Richmond, to recover damages for injuries sustained by him because of the alleged negligence of the defendant and there were a verdict and a judgment in favor of the plaintiff for $2,000, with interest from the date thereof, to which judgment a writ of error was awarded the defendant company by one of the judges of this court The case is as follows:

Plaintiff In error was a corporation owning and operating an electric railway line in the city of Richmond; and on March 24, 1900, defendant in error was driving in an open spring wagon east on Clay street, near its southern line. Car No. 102 of plaintiff in error was going west on the north side of Clay street, and, when he was about a horse and a wagon's length distant from the car, he heard the car make a loud, unusual noise, to which neither he nor the horse paid any special attention; but just as the horse got even with the car the car stopped, and an unusual volume of smoke came from under the front of the car, right in the horse's face, which caused the horse to take fright and start to run away. Defendant in error pulled him up, and, in order to keep him off the curbstone, pulled the left rein harder than he did the right, whereupon the horse darted across the street to the left; and the sudden turn of the wagon threw defendant in error, who was sitting on the right side, out of the wagon, the wheel of which passed over his leg, breaking and crushing it severely. Defendant in error held onto the reins, and the horse stopped. The car in question was one of two cars used in emergency by plaintiff In error to take the place of cars that might be undergoing repairs. It differed from most of the cars in use, in that it had what is called a Sprague motor, No. 6, —one of the older styles of motors; the later types being more economical, and differing from the one in question in that they had a covering over a part of the machinery. What happened to the car on the occasion of this accident is described as the "brush holder grounding." The brush holder is a device which is insulated, and through which the current of electricity passes to the motors. When it grounds, the current which propels the car, instead of taking the usual course, is diverted, and goes to the ground. This is accompanied, usually, by slight noise and some smoke; and the grounding may be due to dust, grease, water, and other things getting on the brush holder and destroying the insulation. The only way to keep the machine from such an accident is to wipe it off, and if this is done once a day it is usually sufficient.

In order to explain that the grounding of the brush holder, as in this instance, is an accident which is liable to happen to the best machinery used in operating street cars, carefully looked after, and is of frequent occurrence, several witnesses were examined on behalf of plaintiff in error.

Witness Trafford, examined as an expert electrician on behalf of plaintiff in error, testified that the grounding of the brush holder, or the short-circuiting of the current of electricity, would be attended with slight noise, and no more smoke would be expected from it than would be produced by one or two puffs from a cigarette, and that the accident would not be likely to happen if the machine is properly looked after and kept cleaned of dust, etc. This witness was asked: "If on the night of the 23d of March, 1900, the machine in question had been properly cleaned, do you think that enough of that dust would have accumulated by 11 o'clock the following day to make it ground?" And he answered: "Not if the machine was in good operating order."

Mr. Vaughan, the foreman of the shops of plaintiff In error, was asked if this Sprague motor on car No. 102 had been cleaned of dust and grease prior to the accident of March 24th, and his reply was: "Not that I know of. They were cleaned at night, —supposed to be cleaned every night." He also states that there was a man by the name of Oglesby and three or four colored men on duty the night before, that it was Oglesby's duty to see that the machine was cleaned, and that he was still in the employ of the company.

It further appears from plaintiff in error's evidence that at the time of this accident, and for a year prior, it had no day inspector of its cars; that the Sprague motor had at that time gone out of general use by the company, and was only used in an emergency to take the place of other cars undergoing repairs; and that the need of constant attention and repair of the Sprague motor was such that a rule was put up at the shops requiring the motorman who was running one of them on his return from a trip over the line to report in the shops, so that the machine might be looked after, and needed repairs made. But it is not shown that this precaution was always taken, and neither Oglesby, whose duty it was to see that the machine in question was properly looked after and cleaned, nor the conductor nor the motorman of car No. 102 on the occasion of this accident, was examined as a witness; nor was the accident report book kept by the company, and upon which, according to Witness Vaughan's statement, the cause of this accident was set forth, produced, although called for by defendant in error.

Defendant in error (plaintiff below) asked for four instructions to the jury, three of which ("a, " "b, " and "d") were given. No objection is made to instructions "b" and "d, " and instruction "a" is as follows:

"If the jury believe from the evidence that the horse of plaintiff was frightened by the noise and smoke arising from the machinery of the car of defendant, and that said noise and smoke was not incident to the ordinary operation of their cars, they are instructed that this raises the presumption that such noise and smoke would not have been caused if those who had the providing, maintaining, and care of defendant's machinery had used proper care in regard thereto, and, in the absence of an explanation on the part of the defendant showing due care on its part, they may infer that the defendant was guilty of negligence; and if they further believethat such negligence caused the accident as set forth in the declaration, and that the plaintiff was free from fault, they must find for the plaintiff."

The objections urged to this Instruction are: First, that it erroneously applies to this case the rule of res ipsa loquitur; and, second, that the instruction is equivocal, in that it is susceptible of the construction that the court was of opinion that there was an absence of an explanation on the part of the defendant (plaintiff in error here) showing due care on its part, whereby the jury were not left free to determine for themselves this question from the evidence.

"As a rule, negligence is not presumed. But there are cases where the maxim res ipsa loquitur is directly applicable, and from the thing done or omitted negligence or care is presumed." 16 Am. & Eng. Enc. Law, 448.

"When the physical facts of an accident themselves create a reasonable probability that it resulted from negligence, the physical facts themselves are evidential, and furnish what the law terms 'evidence of negligence, ' In conformity with the maxim res ipsa loquitur." Seybolt v. Railroad Co., 95 N. Y. 562, 47 Am. Rep. 75; 2 Jag. Torts, 938; Whart. Neg. § 421; Cooley, Torts, 799; Bige-low, Torts, 596; Shear. & R. Neg. § 59.

In Snyder v. Electrical Co., 43 W. Va. 661, 28 S....