Roach v. Southern Ry. Co

• Decision Date: 16 January 1913
• Citation: 114 Va. 440,76 S.E. 953
• Parties: ROACH. v. SOUTHERN RY. CO.
• Court: Virginia Supreme Court

76 S.E. 953

114 Va. 440

ROACH.

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

Jan. 16, 1913.

New Trial (§ 70^*)—Setting Aside Verdict —Sufficiency of Evidence.

Where a case has been properly submitted, and there is no suggestion of misconduct in arriving at a verdict, the court ought not to disturb it unless there has been a plain departure from right and justice, and never in a doubtful case, and. where the evidence on behalf of the plaintiff was ample to sustain a verdict for him, it should not be disturbed by the trial court.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 142, 143; Dec. Dig. § 70.*]

Error to Circuit Court, Pittsylvania County.

Action by John C. Roach against the Southern Railway Company. Judgment in a former trial for plaintiff, and, from a formal judgment for defendant in the second trial, plaintiff brings error. Reversed, and judgment entered for plaintiff on the first verdict.

Lee & Kemp, of Lynchburg, for plaintiff in error.

Wm. Leigh, of Danville, for defendant in error.

WHITTLE, J. This is a personal injury action in which there were two trials. The first trial resulted in a verdict for the plaintiff for $1,200, which, on motion of the defendant, the circuit court set aside. On the second trial there was a verdict and judgment for the defendant, but it was merely formal and for the purpose of enabling the plaintiff to have reviewed on writ of error the action of the court in setting aside the first verdict. Va. Code 1904, § 3484.

There was no demurrer to the declaration, and the correctness of the court's ruling with respect to instructions is not controverted, so that the question for our determination is the sufficiency of the evidence to support the first verdict.

The material facts, from the point of view of the plaintiff in error, are these: On requisition of the plaintiff, the defendant placed one of its box cars on its side track near Whittle's station, in Pittsylvania county, for the purpose of receiving for shipment a car load of cordwood to Danville, Va. A few days previous to the accident, this car had hauled a load of fertilizer from the city of Alexandria (a car inspection point) to Whittle's station. The plaintiff, in company with his employs, Tanksley, hauled a load of cordwood to the car, and backed his wagon to the door so that the wood could be loaded thereon. There was a ditch or depression along the side track filled with water, and, when the wagon was placed in position for unloading, the rear end of the wood frame was several feet below the level of the floor of the car. The car door was the usual sliding door, and lacked about 12 or 18 inches of being entirely open. It was necessary for the plaintiff to enter the car to receive and properly load the wood, and for that purpose he got upon the rear of the wagon in front of the opening and. placing one foot upon the door sill, caught hold of the side of the door with one hand, and the iron hasp attached thereto with the other, to assist himself in stepping into the car. While in this position, in assisting the upward step by attempting to raise himself with his hands, a section of the car door, 18 inches wide at the top and 2 feet wide at the...