Smith v. Va. Ry. & P. Co.

• Decision Date: 14 January 1926
• Citation: 144 Va. 169
• Parties: BENJAMIN H. SMITH v. VIRGINIA RAILWAY AND POWER COMPANY, WHO SUES IN THE NAME OF WILLIE LEE STRATTON.
• Court: Virginia Supreme Court

Page 169

144 Va. 169

BENJAMIN H. SMITH v. VIRGINIA RAILWAY AND POWER COMPANY, WHO SUES IN THE NAME OF WILLIE LEE STRATTON.

Supreme Court of Virginia, Richmond.

January 14, 1926.

1. WORKMEN'S COMPENSATION ACT — Acts of 1920, Section 12 — Liability of Third Party — Subrogation of Employer to Rights of Employee — Right of Employer to Sue in His Own Name. — The first clause of section 12 of the Workmen's Compensation Act of 1920 (Acts of 1920, page 256), providing that the acceptance of the act by the employer and employee shall exclude all other rights and remedies of employee, 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 and not his right against a third party. The last clause of section 12 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.

2. WORKMEN'S COMPENSATION ACT — Subrogation — Action by Employer in Name of Servant Against a Third Party — Amendment of Pleading — Case at Bar. — In the instant case, an action for personal injuries, defendant filed a plea alleging that under provisions of section 12 of the Workmen's Compensation Act (Acts of 1920, page 256) the plaintiff could not maintain his action, the said action having by operation of section 12 been assigned to plaintiff's employer and asking that the action be dismissed. The court refused to dismiss the action but permitted plaintiff to amend his motion by inserting in appropriate places "Virginia Railway and Power Company, who sues in the name of Willie Lee Stratton."

Held: That it was not necessary to amend the notice of motion. Every interest which the defendant had would have been fully protected by endorsing the writ or the declaration with the statement that the action of Stratton was for the benefit of the Virginia Railway and Power Company, as its interest might be shown. This is the common and approved practice in this State.

3. WORKMEN'S COMPENSATION ACT — Subrogation of the Employer to the Right of Employee — Rights of Negligent Third Party. — The Workmen's Compensation Act, section 12 (Acts of 1920, page 256) subrogating the employer to the rights of the employee, was not enacted for the benefit of the negligent third party; he has slight interest in it. He remains liable for the entire amount of such damages as may be lawfully recovered of him. The most that he could possibly claim is that after judgment he would be interested in having the proper apportionment made between the employer who has paid the compensation and the employee, if the recovery against him should exceed the amount paid to such employee under the compensation act.

4. LIMITATION OF ACTIONS — Workmen's Compensation Act — Subrogation — Substituting Subrogated Employer for Employee — Case at Bar. — In the instant case, an action for personal injuries, defendant filed a plea alleging that under provisions of section 12 of the Workmen's Compensation Act (Acts of 1920, page 256) the plaintiff could not maintain his action, the said action having by operation of section 12 been assigned to plaintiff's employer and asking that the action be dismissed. The court refused to dismiss the action but permitted plaintiff to amend his motion by inserting in appropriate places, "Virginia Railway and Power Company, who sues in the name of Willie Lee Stratton." This amendment, while not necessary, may have been appropriate. It was only allowed because the defendant directed attention to the statute and that the employer had thereby subrogated to the rights of the plaintiff. This was not the institution of a new action and it follows that if the action was not barred by the statute of limitations, it was not barred by reason of this amendment.

5. AUTOMOBILES — Negligence — Contributory Negligence of Plaintiff — Driving Automobile between Standing Car and Sidewalk at a Fast Rate of Speed — Case at Bar. — In the instant case, plaintiff, a street car driver, left his own car and started across the street to the sidewalk. His view was obstructed by another street car standing on the tracks. As he stepped into the space between the standing car and the sidewalk, he looked and saw an automobile which defendant was driving rapidly approaching, and was struck and injured by it. Defendant contended that, not looking before he stepped from behind the standing car, plaintiff was guilty of contributory negligence. Defendant was clearly guilty of negligence in driving his automobile through the narrow space between the standing car and the sidewalk at a rate of speed in violation of the city ordinance.

Held: Defendant was only entitled on this evidence and his own denial of excessive speed to have the question of plaintiff's contributory negligence fairly submitted to the jury, which was done.

6. AUTOMOBILES — Rights of Pedestrians and Automobile — Ordinary Care by Pedestrians — Case at Bar. — Pedestrians have equal rights in streets with automobiles, as the automobile, unlike a street car, is not confined to its course by iron rails, but its direction may be changed at the will of the driver. Whether plaintiff, a street car driver, after leaving his own car was justified in attempting to cross the few feet which separated him from the sidewalk, when his view was obstructed by another car standing on the tracks, and whether in so doing he was using such care as an ordinary prudent person would use under the same circumstances, were questions of fact for the jury.

Error to judgment of the Hustings Court, Part Two, of the city of Richmond, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

S. L. Sinnott, for the plaintiff in error.

Wise & Richardson, Norman L. Flippin and T. Justin Moore, for the defendant in error.

PRENTIS, P., delivered the opinion of the court.

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 eastbound rail of the street car track is nine feet three inches. At the time, one of the large type interurban Petersburg street cars was standing on this eastbound track opposite the station, and the side of this car extended eighteen inches beyond the rail, so that the distance between the side of this street car and the curb on Seventh street was seven feet nine 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 twenty-five 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 westbound track, the front of his car being about twenty feet distant from the front of the Petersburg interurban car. He stepped from the Clay street car upon the space between the westbound and the eastbound tracks, on to the eastbound track, thence across the eastbound track, and as he arrived at a point twenty feet east of the Petersburg car he looked west along Seventh street and at the same time stepped across the south rail of the eastbound 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 five feet, six 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 thirteen and one-half inches. He was driving the automobile through this narrow way at about twenty-five miles an hour though the maximum speed under all circumstances at that point along Seventh street was by ordinance limited to not more than fifteen miles an hour.

Assuming the estimated distances to be correct, at the time Stratton stepped over the southern rail of the eastbound track the defendant's car was twenty-five feet away. Stratton attempted to withdraw and fall back, but was struck before he could do so. The automobile, after striking Stratton, passed from three to five feet beyond him, so that as it was about ten or eleven feet in length, the distance which the automobile traveled after Stratton saw it was about forty 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 fifteen and twenty feet had he been going ten 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...