Richmond Ry. & Electric Co v. Bowles

• Decision Date: 02 April 1896
• Court: Virginia Supreme Court
• Parties: RICHMOND RAILWAY & ELECTRIC CO. v. BOWLES.

24 S.E. 388

92 Va. 738

RICHMOND RAILWAY & ELECTRIC CO.

v.BOWLES.

Supreme Court of Appeals of Virginia.

April 2, 1896.

Parties—Married Woman—Personal Injuries —Damages—Trial.

1. In trespass on the case for personal injuries, it appeared that the person injured, who had sued by her next friend, was a married woman of more than 21 years of age, and therefore, by the laws of Virginia, should have sued in her own name, and that she was the real party in interest. Held, that the declaration might be amended by striking out the name of the injured woman's next friend, and by inserting her own as plaintiff.

2. A street-car company, using electricity, is bound to employ the best mechanical contrivances and inventions; and evidence that a particular trolley wire has been the subject of frequently recurring accidents is admissible, as showing that the company had notice of its unsafe condition.

3. Under the married woman's act, the husband is still entitled to the services of his wife, and the wife is still entitled to support at the hands of her husband, and therefore, in a suit by the wife for personal injuries, she cannot recover for loss of time, or the pecuniary expenses incurred.

4. Where there is a variance between a count of the declaration and the proof, the jury should be instructed to disregard such count.

Error to circuit court of city of Richmond.

Action by Regina Elmore Bowles, who sues by her next friend, Aubrey R. Bowles, against the Richmond Railway & Electric Company. Prom a judgment in favor of plaintiff, defendant brings error. Reversed.

Wyndham R. Meredith, for plaintiff in error.

Montague & Dawson, for defendant in error.

KEITH, P. This is an action of trespass on the case, brought in the circuit court of the city of Richmond, by Regina Elmore Bowles, who sues by Aubrey R. Bowles, her next friend, against the Richmond Railway & Electric Company, upon the following cause of action: The defendant was a corporation, owning and operating a railway line along Clay and other streets in the city of Richmond, and the plaintiff was, on the 14th day of December, 1892, a passenger on one of its cars. Soon after taking her seat and paying her fare, the trolley wire used in operating and propelling the car broke, and fell from its usual and customary position above the car, and came in contact with the brake handle, which was attended with consequences so alarming, in appearance at least, and so apparently fraught with danger to the safety of the passengers, that the plaintiff, attempting to escape from a peril which seemed to be imminent, jumped or fell from the car, and received injuries, for which she sues. In the first count she alleges that she was told by the conductor to jump while the car was running at great speed, and that she was injured in attempting to obey his directions, while, in the second count, the allegation with respect to the conductor is omitted. In both counts the specific negligence stated consists in the failure of the defendant to provide adequate and proper trolley wires, machinery, and other appliances for its business, and to keep the same in proper order and repair. She claims damages in each count for money expended in the treatment of the fractures, hurts, and injuries sustained, for the pain she suffered, for the sums expended upon her maintenance and support, and for loss of time, aggregating the sum of $6,000. The case was tried before a jury, and a verdict rendered in favor of the plaintiff in the sum of $1,250, with interest from the 21st of November, 1893. The defendant moved the court to set aside the verdict and grant a new trial, which the court overruled, and the defendant excepted; and to this and other rulings of the court which took place during the trial the defendant filed four bills of exceptions. To the judgment rendered a writ of error and supersedeas was granted by one of the judges of this court.

The first error assigned is that the suit was brought in the name of Mrs. Regina Elmore Bowles, by Aubrey R. Bowles, her next friend, and it is contended that a married woman over the age of 21 years cannot sue in this state by her next friend. The point was presented by the plaintiff in error upon a motion to quash the writ by demurrer to the declaration, by motion in arrest of judgment, and by a motion to set aside the verdict. The least technical and most satisfactory way in which to consider the matter, however, is upon the motion to set aside the verdict asbeing contrary to the evidence. By section 2284 of the Code, which declares of what the separate estate of a married woman shall consist, it is provided that the separate estate shall include, among other things, "damages for a wrong." By section 2288 it is provided "that, as to all matters connected with or relating to or affecting * * * her separate estate, * * * she may sue and be sued in the same manner, and there shall be the same remedies in respect thereof, for and against her and her said estate, as if she were unmarried." It was held by this court in the case of Railroad Co. v. Dougherty (decided at the November term, 1805) 23 S. E. 777, that, under the language of the section just quoted, the husband could not be joined with his wife, suing to recover damages for a wrong, but that the suit must be in her own name, as if she were unmarried. By our law infants sue by their next friend. A married woman, with respect to her separate estate, sues in her own name, if she be more than 21 years of age. In this case it appears that the plaintiff, Mrs. Bowles, is more than 21 years of age. It must be conceded, therefore, that it was irregular to bring her before the court by her next friend. It is, however, none the less her suit. It is the suit of Re-gina Elmore Bowles, who sues by Aubrey R. Bowles, her next friend. The suit was brought to recover damages for a wrong done to her, which constitute, when recovered, a part of her separate estate. She was in court. She testified during the trial. All the proceedings from the writ to the judgment show that she was the actual, beneficial, substantial party to the litigation, and that being under no disability either of infancy or coverture, she was upon the footing of an...