Richmond Ry. & Electric Co v. Garthright

Decision Date20 February 1896
Citation92 Va. 627,24 S.E. 267
CourtVirginia Supreme Court
PartiesRICHMOND RAILWAY & ELECTRIC CO. v. GARTHRIGHT.

Writ of Error—Review—Evidence—Electric Street Railways—Collisions—Negligence—Excessive Damages.

1. On review of the sufficiency of the evidence on writ of error, the court will accept as true all of plaintiff's evidence, and all just inferences which can properly be drawn therefrom, and reject all conflicting evidence on the part of appellant.

2. An electric street railway is not required to have in use the latest improvements devised to prevent collision with vehicles and pedestrians, but only to use reasonable care to avail itself of new inventions and improvements known to it.

3. Where, in an action against an electric street-railway company for personal injuries received in a collision at the intersection of two streets between a car of defendant and a fire truck upon which plaintiff was riding, it appears that the car was overcrowded, so that the motor-man was unable to properly handle the brake; that at the time the fire truck was first seen passing rapidly across defendant's tracks the car was 40 to 50 feet distant; that the truck, which, together with the horses, was 50 feet long, had nearly cleared the track, the car having struck it near the rear wheel; that cars properly loaded could be stopped within 30 feet, —defendant is, as a matter of law, guilty of negligence, and therefore an erroneous instruction that the failure of defendant to use a certain kind of machinery was negligence, if the accident could have been averted thereby, was not prejudicial.

4. In an action for personal injuries a verdict for $1,000 will not be set aside, the evidence showing that plaintiff received a severe cut upon the head, necessitating attendance from a physician for two weeks and injuries to his legs, rendering him unable to work at his trade efficiently for six or eight months.

Error to circuit court of city of Richmond.

Action by W. T. Garthright against the Richmond Railway & Electric Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Wyndham R. Meredith, for plaintiff in error.

Courtney & Patterson, for defendant in error.

RIELY, J. The judgment to which the writ of error was awarded in this case was recovered for injuries received in a collision between a car of the Richmond Railway & Electric Company and a hook and ladder truck of the fire department of the city of Richmond. Three grounds are assigned for the reversal of the judgment

The first is that the plaintiff in the suit was barred of the right to recover because of his own contributory negligence. The case comes before us upon a certificate of the evidence, and in considering it we must apply the familiar rules applicable to a demurrer to evidence. These rules require us to accept as true all of the plaintiff's evidence, and all just inferences which could be properly drawn from it by a jury, and to reject all of the evidence of the defendant which conflicts with that of the plaintiff, and all inferences which do not necessarily result from it. Many witnesses were examined on both sides, and there was considerable conflict in much of the testimony. It is unnecessary to rehearse it but sufficient to say that testing it by the above rules, the evidence clearly establishes the negligence of the defendant company, and does not justify the claim that the plaintiff was guilty of such contributory negligence that, but for the same, the accident would not have happened.

The second assignment of error relates to the instruction given by the court, numbered 2, which is as follows: "The jury are further instructed that if they believe from the evidence that when the horses of the truck came in sight of persons on the defendant's car the said car was at such a distance from the point of collision that the accident might have been averted but for the want of a Sprague motor on the car, or the crowding on the platform of passengers preventing the motorman's use of his machinery, then the defendant company was guilty of negligence, and the jury must find for the plaintiff, even though they believe that the motorman on the car did all in his power to stop his car, unless they believe that the negligence of plaintiff or tillerman contributed to the accident." The objection made to this instruction is that it pronounces the failure of the company to equip its car with a Sprague motor to be negligence, when there was no evidence before the jury tending to show that such motor was a necessary equipment of its car, or that the want of it caused the accident in which the plaintiff was injured. The evidence upon this point was very meager. Only three witnesses, all of whom were called by the defendant, testified in regard to the matter. One of them, Mr. Hill, who had worked in the shops of the company, and was a conductor on one of its cars at the time he testified, but had never been a motorman, stated that this particular car was the only one that was provided at the time of the accident with a Westinghouse motor, and that the others were equipped with Sprague motors. When questioned as to which was the best machine for stopping a car suddenly, he answered that the Westinghouse "reverses slower, " and that the Sprague "takes quicker than the other, " whatever that may mean.

Mr. Jackson, who was the conductor on the car, was asked by which motor could a car be stopped in the shortest distance, and replied that it was as easy to stop the ear with the one as the other. Maj. Selden, the superintendent of the company, was the only other witness as to this matter. He stated that the company, at the time he testified, was using the Westinghouse motor almost entirely on its Main Street Line and the Sprague motor on its Clay Street Line. When asked which was the best motor, he stated, "I think the Westinghouse a little better"; and, when asked further, if a car could be stopped quicker with the Westinghouse motor than with the Sprague, he replied, "The difference is so slight, it is hardly appreciable." The foregoing is substantially all the evidence upon which the instruction complained of was based. It thus appears that it was not testified to that the Sprague motor was a better appliance than the Westinghouse, or that at the time of the accident it had been tested and was in practical use by electric street railways, or had been adopted by them as a safer machine, or that the accident could have been averted if the car had been equipped with a Sprague motor. It was the legal duty of the defendant company to provide its cars with suitable and safe machinery. It is incumbent upon a railway company, propelled by the powerful and dangerous agencies of steam or electricity, especially in a large and populous city, to use ordinary and reasonable care to avail itself of all new inventions and improvements known to it which will...

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  • Bremer v. St. Paul City Ry. Co.
    • United States
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    ...22 L. R. A. 374; Consolidated v. Scott, 58 N. J. L. 682, 34 Atl. 1094, 33 L. R. A. 122, 55 Am. St. 620; Richmond v. Garthright, 92 Va. 627, 24 S. E. 267, 32 L. R. A. 220, 53 Am. St. 839; Richmond v. Gordon, 102 Va. 498, 46 S. E. 772; Chauvin v. Detroit, 135 Mich. 85, 97 N. W. 160; Pilmer v.......
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