Smith v. Va. Ry. & Power Co

• Decision Date: 14 January 1926
• Citation: 131 S.E. 440
• Court: Virginia Supreme Court
• Parties: SMITH. v. VIRGINIA RY. & POWER CO.

131 S.E. 440

SMITH.

v.VIRGINIA RY. & POWER CO.

Supreme Court of Appeals of Virginia.

Jan. 14, 1926.

Rehearing Denied Feb. 1, 1926.

Error to Hustings Court, Part 2, of Richmond.

Action by the Virginia Railway & Power Company, who sues in the name of Willie Lee Stratton, against Benjamin Hi Smith. Judgment for plaintiff, and defendant brings error. Affirmed.

S. L. Sinnott, of Richmond, for plaintiff in error.

Wise & Richardson and Norman L. Flippen, all of Richmond, for defendant in error.

PRENTIS, P. Benjamin H. Smith complains of an adverse verdict and judgment in an action against him to recover damages for personal injury suffered by Willie Lee Stratton, because struck on Seventh street between Perry and Porter streets, Richmond, by an automobile driven by Smith.

The evidence relied on by the plaintiff shows that there are double street car tracks on Seventh street at the place where the injury occurred. On the southeastern corner of Seventh and Perry streets is the terminal station of the Petersburg car line, facing Perry street, and extending eastwardly from Perry street along Seventh to Porter street. The distance from the curb line of the sidewalk adjoining this building to the nearest east-bound rail of the street car track is 9 feet, 3 inches. At the time, one of the large type interurban Petersburg street cars was standing on this east-bound track opposite the station, and the side of this car extended 18 inches beyond the rail, so that the distance between the side of this street car and the curb on Seventh street was 7 feet, 9 inches. It was through this narrow space between this Petersburg car and the curb line that Smith drove his automobile at a speed estimated by the plaintiff's witnesses at 25 miles an hour, in violation of the city ordinance both as to speed and care.

Stratton, a motorman of an old type Clay street car, had his car standing in Seventh street on the west-bound track, the front of his car being about 20 feat distant from thefront of the Petersburg interurban car. He stepped from the Clay street car upon the space between the west-bound and the east-bound tracks, onto the east-bound track, thence across the east-bound track, and as he arrived at a point 20 feet east of the Petersburg car he looked west along Seventh street and at the same time stepped across the south rail of the east-bound track. He then for the first time saw Smith's rapidly approaching automobile in the narrow space between the Petersburg car and the curb on Seventh street. The automobile was 5 feet, 6 inches in width, so that if Smith was driving in the center of this restricted space, then the space between the side of the automobile and the side of the Petersburg street car was only 13¹/₂ inches. He was driving the automobile through this narrow way at about 25 miles an hour, though the maximum speed under all circumstances at that point along Seventh street was by ordinance limited to not more than 15 miles an hour.

Assuming the estimated distances to be correct, at the time Stratton stepped over the southern rail of the east-bound track the defendant's car was 25 feet away. Stratton attempted to withdraw and fall back, but was struck before he could do so. The automobile after striking Stratton, passed from 3 to 5 feet beyond him, so that as it was about 10 or 11 feet in length, the distance which the automobile traveled after Stratton saw it was about 40 feet.

Smith testified that he gave the proper warning signals, was not exceeding the speed limit as fixed by ordinance, and that his automobile could be stopped in a distance of between 15 and 20 feet had he been going 10 miles an hour; but he denied that he was operating the car at that speed. There is evidence that the automobile skidded before it stopped, and this, if true, leads inevitably to the conclusion that Smith saw Stratton when he was some distance away from him and was making an effort to stop the car at the time he struck him. If this be true, he was traveling at an excessive rate of speed; if it be untrue, and his statement that he did not see Stratton until the instant of the injury be true, then he was negligent in failing to keep a proper lookout.

Stratton, as an employee of the Virginia Railway and Power Company, was paid compensation from time to time under the Workmen's Compensation Act (Laws 1918, c. 400). as awarded by the Industrial Commission.

The first assignment of error refers to questions of procedure, and is thus stated:

"It is the contention of the defendant that the court was in error in refusing to sustain defendant's motion to dismiss and in allowing the Virginia Railway & Power Company to be substituted as party plaintiff in lieu of the original plaintiff, and in overruling defendant's plea of the statute of limitations. Because these errors are so closely related, they will be treated in one assignment. As above shown, the defendant filed a plea alleging that under the provisions of section 12 of the Workmen's Compensation Act of Virginia, the plaintiff could not maintain his action, said action having by operation of law been assigned to the Virginia Railway & Power Company."

So much of section 12 of the act (as amended) which was in force at the time of the accident as is pertinent reads thus:

"The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death.

"The making of a lawful claim against an employer for compensation under this act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured employee or his personal representative, the legal liability of such other party. The amount of compensation paid by the employer or the amount of compensation to which the injured employee or his dependents are entitled shall not be admissible as evidence in any action brought to recover damages, but any amount collected by the employer under the provisions of this section in excess of the amount paid by the employer or for which he is liable shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less such amounts as are paid by the employer for reasonable expenses and attorney's fees. Provided, that no compromise settlement shall be made by the employer or insurance carrier in the exercise of such right of subrogation without the approval of the Industrial Commission and the injured employee or the personal representative or dependents of the deceased employee being first had and obtained." Laws 1920, c. 176.

The next clause of the statute provides for the like subrogation of the insurance carrier, if it has paid the compensation to the injured employee.

This motion was instituted in the name of Willie Lee Stratton, the injured employee, on April 2, 1923; the injury having occurred August 16, 1922. On October 29, 1923, which was more than one year after the date of the accident, the defendant Smith filed a special plea, alleging that Stratton was an employee of the Virginia Railway & Power Company, and as such had received compensation under the Workmen's Compensation Act on account of his injury, and that therefore Stratton could not maintain the action, since the Virginia Railway & Power Company had been by the statute subrogated to his rights, and moved the court to dismiss the proceeding.

The plaintiff filed a replication to this special plea, to the effect that the case should not be dismissed because it is an action brought by the Virginia Railway & Power Company in the name of Stratton, and under the provisions of section 12 of the Workmen's Compensation Act it is provided that the employer may enforce in his own name, or in the name of the injured employee, the legal liability of some other party. Upon the filing of this replication, the defendant, Smith, moved the court to dismiss the suit. This the court refused to do, but permitted the plaintiff to amend his notice of motion by inserting at appropriate places "Virginia Railway & Power Company, who sues in the name of Willie Lee Stratton." Thereupon the defendant, Smith, filed his plea of the statute of limitations, which plea the court rejected.

The contention is that Stratton could not maintain the action because of the first clause of section 12 of the act, hereinbefore quoted. That clause, however, refers only to the remedy of an employee against his employer, and it is only his right to sue his employer for damages which is barred by the acceptance of compensation under the act. No argument to support this conclusion is necessary, as it seems to us, because he who runs may read it in the statute.

The next clause of the section quoted refers to an entirely different right, and subrogates the employer who has paid compensation to his employee under the act to the right to enforce any legal liability against such other party as may be liable in damages for the injury. The employer is not only subrogated to any such right of the employee to enforce any such legal liability against another, but the statute in express terms provides that he may enforce it "in his own name or in the name of the injured employee, or his personal representative."

The citation of other cases relating to actions in the name of one party for the benefit of another affords little aid, because the determination of the question here raised depends upon the construction of this...