Richmond Traction Co v. Clarke

• Decision Date: 19 March 1903
• Citation: 101 Va. 382,43 S.E. 618
• Court: Virginia Supreme Court
• Parties: RICHMOND TRACTION CO. v. CLARKE.

43 S.E. 618

101 Va. 382

RICHMOND TRACTION CO.

v.CLARKE.

Supreme Court of Appeals of Virginia.

March 19, 1903.

APPROACHING CAR—RIGHT TO CROSS TRACK— INSTRUCTIONS—DISCOVERED PERIL—ERROR ACQUIESCED IN BY APPELLANT—SUFFICIENCY OF EVIDENCE.

1. It is not contributory negligence, as a matter of law, to drive across a street car track in front of an approaching car, seen by the driver 100 yards away, but the question is for the jury.

2. An instruction assuming that it was negligence per se to attempt to cross a street car track in front of an approaching car, without regard to the car's distance or the circumstances of the case, while ignoring evidence that the car was running at a very high and illegal rate of speed, is properly refused.

3. An instruction that, if a traveler in a buggy had gone on a street car track improperly, the jury must find for the defendant company, unless the motorman on an approaching car, which struck the buggy, had increased the car's speed, and rendered it impossible for the driver to get across, is properly refused as ignoring the doctrine of discovered peril.

4. In a personal injury action against a street railway company the court instructed that if, when plaintiff got on the track, the motor-man on an approaching car saw or could have seen his danger in time to avoid striking his buggy, and failed to do so, plaintiff should recover. Plaintiff testified that the car was 100 yards away, and he had only a short distance to travel to get across. Defendant requested an instruction that, if plaintiff was guilty of contributory negligence in attempting to cross, they must find for defendant, unless the motorman, after he saw plaintiff was going to cross, failed to exercise reasonable care to avoid the accident. Held that, inasmuch as defendant had requested an instruction embodying the theory that plaintiff was not guilty of contributory negligence after getting on the track, it could not criticise the first instruction as failing to cover that phase of the case while authorizing a finding for plaintiff.

5. Evidence in an action by a traveler in a buggy for injuries sustained by being struck by an approaching car in attempting to cross a street car track, considered, and held to sustain a verdict for the plaintiff, determining the issues of negligence and contributory negligence in his favor.

Error to Law and Equity Court of City of Richmond.

Action by one Clarke against the Richmond Traction Company. Judgment for plaintiff, and defendant brings error. Affirmed.

William L. Royall, for plaintiff in error.

R. H. Talley and Wyndham R. Meredith, for defendant in error.

BUCHANAN, J. This action was brought by the defendant in error to recover damages for injuries caused by the alleged negligence of the Richmond Traction Company, a corporation operating an electric street railway in the city of Richmond.

It appears that the defendant company operates a double-track street car line on Broad street, in that city; that at the point where the plaintiff was injured the street is about 43 1/2 feet wide between the curbing; that from the northern curb to the nearest rail of the street car track is nearly 14 feet; and that the grade is heavy, being about 8 feet in the 100 feet.

The plaintiff testified that on the day he received the injuries complained of he was driving in a buggy without a top down the street on the north side thereof between the curbing and the northern rail of the street car track; that, seeing a wagon backed up near the curbing on the north side, with the horses' heads extending out into the street, he determined to drive across the street car tracks to the south side of the street; that before going upon the track he looked up the street, and saw a car coming down the street on the southern track about 100 yards away; that he started across at the rate Of 4 or 5 miles an hour, and that when his buggy was entirely across the street car track, except the left hind wheel, it was struck by the street car, and overturned, throwing the plaintiff out, fracturing his hip, and inflicting the other injuries complained of; that when he started across the track he looked, saw the approaching car, did not notice anything unusual in its speed, and thought from the distance the car was from him he had time to cross the track without running any risk.

Two other witnesses thought the car was 100 yards away when the plaintiff started to cross the street. Both of them testified that the car was running very fast—one, four or five times as fast as the cars usually ran; that the motorman neither rang the bell nor made an effort to stop the car until it struck the wheel of the buggy, after which, one of the witnesses states, the car ran two car lengths before it stopped. That witness further testifies that, if the car had been running at its regular speed, the plaintiff could easily have driven across the track and gotten out of its way.

The ordinances of the city of Richmond provide that no street car shall at any time run at a greater rate of speed on any street of the city than eight miles an hour, and that each motorman or driver of a street railway car shall keep a vigilant watch for all teams, carriages, or persons, and shall strike a gong or bell several times in quick succession in approaching within 100 feet of such team, carriage, or person.

The case made by the defendant's evidence was, briefly, as follows: The motorman testified that he was running about 4 miles an hour when he saw the plaintiff start to cross the street about a car length in front of him; that he was and had been ringing the bell; that he at once applied the brakes, reversed the current, and used all his means for stopping the car except sanding the track, but was unable to stop it until just as it reached the plaintiff's buggy; that the car and all its appliances were in good condition; that the accident occurred about 75 yards west of the point where the Seaboard Air Line Railroad crosses Broad street; that all street cars are required by the rules of the defendant to stop and do stop not less than 25 feet from that and other steam railroad crossings until it is seen that the way is clear; that, if the car had been running as fast as the plaintiff's witnesses said it was, he could not have stopped it before reaching the railroad crossing; that the grade of Broad street where the accident occurred is steep, and that he never runs down it at more than 6 miles an hour; that he can stop on that grade in one car length when running at the rate of 10 miles an hour.

The conductor on the car testified that the car was running at its usual speed, four or five miles an hour; that the bell was rung, and that the car stopped immediately after it struck plaintiff's buggy.

Three other witnesses testified as to the speed of the car. One of them thought it was running about four or five miles an hour, another that the speed was moderate, and the other that the speed was not unusual.

The chief engineer of the defendant company proved that he had ascertained by actual measurements that Broad street, at the point where the accident occurred, was 43 feet 4 1/2 inches wide from curb to curb; that the rails on each track were 5 feet apart, and the distance between the tracks 4 feet and 1 inch; that from the northern curb to the nearest rail on the northern track was 13 feet and 9 inches, and to the northern rail on the southern track 22 feet and 10 inches; that from the southern rail of that track to the southern curb was 15 feet 6 1/2 inches, and that the average length of a wagon and horse was 15 feet.

In submitting the case to the jury the court gave seven instructions—five asked for by the plaintiff, and two upon the motion of the defendant; and refused to give instructions numbered 9, 10, and 11 asked for by the defendant.

The action of the court in giving instructions numbered 2 and 4 for the plaintiff and in refusing to give instructions 9, 10, and 11 is assigned as error.

By instruction No. 9 the court was asked to tell the jury that a traveler in a buggy upon the street of a city is negligent, as a matter of law, who voluntarily attempts to cross a street car track in front of an approaching car, which he sees at a distance of 100 yards. To sustain the contention that the court erred in not giving that instruction the defendant cites the case of the Southern Railway Company v. Bryant's Adm'r, 95 Va. 219, 28 S. E. 183, in which it was held that: "It is without doubt a general rule that a person about to cross a railroad track, even at a public crossing, must exercise ordinary care and prudence. He must use all his faculties to avoid danger. He should look and listen. He should look in each direction from which a train could come, and, if not in sight, listen for its approach; and, if warned by his faculties of the near approach of a train, it is his duty to keep off the track until it has passed, or no recovery can be had for any injury he may...