Small v. Va. Ry. & Power Co

• Decision Date: 12 June 1919
• Court: Virginia Supreme Court
• Parties: SMALL v. VIRGINIA RY. & POWER CO.

99 S.E. 525

SMALL

v.VIRGINIA RY. & POWER CO.

Supreme Court of Appeals of Virginia.

June 12, 1919.

Error to Law and Chancery Court of City of Norfolk.

Action by B. T. Small against the Virginia Railway & Power Company. To review judgment for defendant, plaintiff brings error. Reversed, and cause remanded for new trial.

E. R. P. Wells, of Norfolk, for plaintiff in error.

A. D. Christian, of Richmond, W. H. Venable, of Norfolk, and E. R. Williams, of Richmond, for defendant in error.

KELLY, J. The Virginia Railway & Power Company owns and operates a double-track street railway on Granby street, in the city of Norfolk. At the time of the accident involved in this suit, a section of the eastern side of Granby street had been torn up and was too rough for ordinary travel. This condition, apparently due to preparation for paving the street, is designated in the record as an excavation. It extended laterally 183 feet and affected all of the eastern side of the street for that distance, including the eastern street car track and the space between the same and the western track. The use of the eastern track by street cars was not impeded. The west side of the street, including the western car track, was paved and in good condition for travel of all kinds.

The plaintiff, B. T. Small, who was familiar with the above conditions, was riding a bicycle in a northerly direction between the rails of the western car track opposite the excavation when he observed a street car coming south on that track and also some jitneys approaching in the same direction on the western side of the street. He could not avoid the approaching street car by turning to the left, as that course involved a collision with the jitneys, and so he turned diagonally to the right. As he did so, carelessly it may be, he rode into the excavated area, fell from his bicycle, and was struck by a north-bound car on the eastern track.

Just what happened when he rode into the excavation is the subject of a direct conflict in the evidence, giving rise to two distinct theories of fact.

It is the theory of the plaintiff, supported by his own testimony and certain corroborating circumstances, that he fell, not on the rails of the western track, but in the space between the two tracks, and lay there until the south-bound car and certain automobiles trailing behind it had passed, and then, while attempting to arise, was overtaken and struck by the north-bound car, the sides of which, of course, projected over the rails. He claims to have looked over his shoulder to see if a car was approaching from the south, before he tried to get up, and, seeing none, to have been struggling to his feet when he was struck. He was 62 years old, and perhaps not very agile. His contention is that the motorman ought to have seen his danger and stopped the car; and he seeks to recover upon the doctrine of the last clear chance.

It is the theory of the defendant, supported by the testimony of the motorman and certain corroborating circumstances, that the north-bound car was so close to the plaintiff at the time of his fall that he either fell against the front corner of the car, or such a short distance in front of it, that the motor-man, in the exercise of ordinary care, could not have avoided the injury.

The plaintiff was caught and carried some distance in the fender of the ear, and this circumstance is relied upon as conclusive corroboration of the motorman's testimony; the argument being that, if he had fallen between the tracks, his body, lying in the excavation, would have been cleared by the fender. This argument, however, apparently loses sight of the fact that the plaintiff says he was getting up when the car struck him.

A circumstance tending to corroborate thetestimony of the plaintiff appears upon a comparison of his statement with that of the motorman, as follows: The plaintiff says that he turned to the right to avoid the south-bound car, that this immediately resulted in his fall, and that at that time there was no north-bound car anywhere near him. The motorman, who claims that he was not more than eight feet from the plaintiff at the time he first saw him, further states that no south-bound car passed him near the point of the accident, but passed him, if at all, further down in the block. Accepting this latter statement as true, and giving to the plaintiff's testimony the credence which the jury might have given to it but for the peremptory instruction hereinafter referred to, it would appear that the motorman was mistaken in saying that he saw the plaintiff fall when his car was within eight feet of him. In other words, in this view of the evidence, after the plaintiff fell, the south-bound car passed him and ran down the block some j distance before it met the north-bound car. This, of course, means that the latter, which was the motorman's car, was much more than eight feet away when the plaintiff fell, and necessarily weakens the defendant's theory and contention. Whether the jury would have taken this view of the evidence, thus accepting the plaintiff's testimony as a whole and rejecting that portion of the motorman's which was in conflict with it, or would have rejected the plaintiff's account and accepted as a whole the motorman's version, is a question which cannot be answered, because, as we shall presently see, the court directed a verdict for the defendant.

At the trial the plaintiff asked for two instructions, the first of which presented the doctrine of the last clear chance as applicable to the case upon the plaintiff's view of the evidence, and the second of which submitted to the jury the question of the plaintiff's contributory negligence. Both of these instructions were refused, presumably because the trial court was of opinion that there could be no recovery by the plaintiff under any reasonable interpretation of the evidence. It follows from what we have already said that we do not concur in this conclusion. We are of opinion that the plaintiff was entitled to an instruction upon his theory of the case.

To sustain the action of the court in refusing any instructions at all on behalf of the plaintiff, it is contended that the case at bar is controlled by the decision of this court in Virginia Railway & Power Co. v. Win-stead's Adm'r, 119 Va. 326, 89 S. E. 83. We cannot, however, accord to the cited case the effect attributed to it. Unlike the plaintiff in the Winstead Case, the plaintiff here was making a rightful and proper use of the street, and the only criticism that can be made of his conduct is that he may have been thoughtless and negligent in the manner in which he left the paved portion of the street and entered the excavated portion in his effort to avoid a collision with the street car. As to this latter question, we are unable to say, as a matter of law, that he was guilty of such negligence as would have barred his recovery, and likewise unable to say that such negligence on his part, if it existed, was the proximate cause of the accident. These questions, like that of the defendant's negligence, should have been submitted to the jury.

Nor is there any significance in the fact, relied upon by the defendant, that the testimony tends to show that the accident occurred after dark and in a dimly lighted portion of the street, because the motorman himself says he saw the plaintiff when he fell from his wheel.

The only written instruction in the case was the following, given at the instance of the defendant:

"The court instructs the jury that, if you believe from the evidence that, when the plaintiff rode into the excavation and fell, the car was so close that the motorman could not by the exercise of ordinary care stop it in time to prevent it striking the plaintiff, then you must find for the defendant, Virginia Railway & Power Company, even though you believe the motorman was negligent. The court instructs the jury that, if you believe from the evidence that, when the plaintiff rode into the excavation, he fell and struck against the car or fender as he was falling, then you must find for the defendant, Virginia Railway & Power Company, even though you believe the motor-man was negligent."

This instruction presented the defense to the plaintiff's claim...