Trowbridge's Adm'r v. Danville St.-car Co.1

• Decision Date: 14 June 1894
• Citation: 19 S.E. 780
• Parties: TROWBRIDGE'S ADM'R v. DANVILLE STREET-CAR CO.1
• Court: Virginia Supreme Court

19 S.E. 780

TROWBRIDGE'S ADM'R

v.DANVILLE STREET-CAR CO.¹

Supreme Court of Appeals of Virginia.

June 14, 1894.

House and Street Railroads — Death of Person on Track—Contributory Negligence.

1. In an action against a street-car company for running over the deceased, it appeared that the car was going along the street upon a straight track; that the street was crowded with vehicles; that the deceased dodged across the track in front of the car, to escape a vehicle, but did not observe the car, although the whistle was constantly sounded. There was evidence that the motorman used every diligence to stop the car, and the deceased, prior to his death, exonerated the company from all blame. Held, that the defendant was not liable.

2. Where a declaration charges that the defendant corporation is using the streets of a city under its franchise, employing electricity as a motive power, it is not proper to raise the question as to its right to use electricity instead of horse power.

3. The sudden peril which will excuse what would otherwise be contributory negligence on the part of the plaintiff must have been caused by the action of the defendant, and not of a third person.

Error to corporation court of Danville.

An action by the administrator of William H. Trowbridge against the Danville Street-Car Company for causing death of the deceased. Judgment for defendant. Plaintiff brings error. Affirmed.

LACY, J. The circumstances of the killing are that the car which inflicted the injury was passing along the street of the said city of Danville in the usual way, and upofi a straight track, which enabled the car driver to see a considerable distance ahead of him; but, at the time of the accident, the street was crowded with vehicles alongside of the track, a wagon passing close on one side, and two drays on the other side. The deceased dodged across the track close in front of the car, escaping from the front of one vehicle, and endeavoring to cross the track, and land, so to speak, safely behind another, on the other side; but, miscalculating the distance and the speed of the car, crossed too close to the car front, and, not observing the car, although the whistle was constantly sounded, was struck and killed. It is said that the car ran 14 feet after it struck him, and that the driver could have stopped the car almost instantly; but there is a difference of opinion among the witnesses as to this distance. There is evidence that the car driver used every diligence to stop the car, and made strenuous exertions to push the unfortunate away from the car, as soon as he was close enough. Indeed, the deceased was not killed instantly, and himself drew the diagram of the situation, and exonerated the company from all blame for negligence. Upon the evidence, the jury found for the defendant, and the court certified the evidence. The court was asked for several instructions by the plaintiff, which were rejected by the court, and the plaintiff objected to several instructions given to the jury upon the motion...