Va. Elec. & Power Co. v. Wright

• Decision Date: 28 April 1938
• Citation: Va. Elec. & Power Co. v. Wright, 170 Va. 442, 196 S.E. 580 (1938)
• Parties: VIRGINIA ELECTRIC AND POWER COMPANY, A CORPORATION v. HARRY T. WRIGHT.
• Court: Virginia Supreme Court

Page 442

170 Va. 442

VIRGINIA ELECTRIC AND POWER COMPANY, A CORPORATION v.HARRY T. WRIGHT.

Supreme Court of Virginia, Richmond.

April 28, 1938.

Present, All the Justices.

1.NEGLIGENCE — When a Question of Fact and When a Question of Law.— Whether a negligence case should be submitted to a jury or determined by the court must always turn on the peculiar facts in the particular case.

2.NEGLIGENCE — Generally a Jury Question.— Generally, negligence is for the jury and should not be taken from it unless there is no real conflict.

3.NEGLIGENCE — Conclusiveness of Verdict.— The verdict must stand in negligence cases unless there is a plain deviation from the evidence or it is palpable that the jury have not drawn the correct inference from the facts.

4.NEGLIGENCE — Contributory Negligence — Question of Fact When Fair-Minded Men May Honestly Differ.— If fair-minded men may honestly differ from the proofs submitted as to the negligence or contributory negligence charged, the question is not one of law, but one of fact for the jury under proper instructions from the court.

5.NEGLIGENCE — Appeal and Error — Affirmance in Case of Doubt as to Sufficiency of Evidence to Sustain Verdict.— Where the Supreme Court of Appeals reviews a judgment which approves the verdict in a close and doubtful negligence case, and there appears to be nothing wrong with the verdict other than it is doubtful whether it is sustained by the evidence, then it is the duty of the Supreme Court of Appeals to affirm the judgment.

6.APPEAL AND ERROR — Necessity for Showing Reversible Error.— The plaintiff in error must always bring to the Supreme Court of Appeals something more than just a close or doubtful case.He must bring a case with prejudicial and reversible error in it, pointing out specifically the prejudicial error he relies upon.

7.NEGLIGENCE — Contributory Negligence — Question for Jury When Justices of Supreme Court of Appeals Differ.— Where the justices of the Supreme Court of Appeals differ as to whether negligence or contributory negligence was a question of law or a question of fact, it is conclusive that the question should go to the jury, for the justices must be presumed to be fairminded men, and if they differ, they differ honestly.

8.AUTOMOBILES — Collision with Street Car — Conduct of Motorman Constituting Gross Negligence — Case at Bar.— In the instant case, an action to recover for injuries received in a collision between an automobile and a street car, at the time of the collision the motorman was talking to a passenger and engaged in making change while driving a heavy street car at night across an intersecting thoroughfare.He not only failed to keep a lookout but actually increased his speed as he crossed the intersection, although he had every reason to know of the traffic that would be encountered.

Held: That the conduct of the motorman constituted a very gross form of negligence.

9.AUTOMOBILES — Collision with Street Car — Appeal and Error — Affirmance of Recovery in Absence of Evidence of Contributory Negligence as Matter of Law.— Where, in an action to recover damages for injuries received in a collision between an automobile and a street car, the negligence of the motorman of the car in proceeding across an intersection without looking is conceded, plaintiff is not to be denied recovery, on appeal, unless the evidence shows, as a matter of law, that he was guilty of such negligence as efficiently contributed to his own injury.

10.NEGLIGENCE — Contributory Negligence.— Burden of Proof.— Generally, at a trial by jury, the burden rests upon the defendant to show contributory negligence by a preponderance of the evidence.

11.NEGLIGENCE — Contributory Negligence — Appeal and Error — Proof of Contributory Negligence as a Matter of Law.— Where, on appeal, the defendant requests a holding that the plaintiff was guilty of contributory negligence, as a matter of law, he must show that there was no conflict in the evidence of contributory negligence, and that there was no direct and reasonable inference to be drawn from the evidence as a whole, sustaining the conclusion that the plaintiff was free from contributory negligence.

12.AUTOMOBILES — Collision with Street Car — Questions of Law and Fact — Matters of Opinion, Estimates and Judgment.— In arriving at a proper conclusion regarding the degree of care exercised by the parties in an action for injuries received in a collision between a street car and an automobile, there are many things to be considered, such as distances, speed and within what time and distance an automobile or a street car could be stopped — all involving matters of opinion, estimates and best judgment — and in giving testimony of estimates, it is natural that witnesses should differ, and a jury is the better tribunal to form correct conclusions from this kind of evidence.

13.AUTOMOBILES — Collision with Street Car — Questions of Law and Fact — Contributory Negligence of Automobile Driver — Case at Bar.— In the instant case, an action for injuries sustained by the driver of an automobile in a collision with a street car at a street intersection, plaintiff saw the street car entering the intersection at a slow rate of speed, looked to see if traffic was approaching from the other direction, and then on the assumption that he had ample time to cross, proceeded into the intersection, where he was struck by the street car.It was conceded that the motorman increased the speed of his car as he crossed the intersection.

Held: That the question of the contributory negligence of plaintiff was for the jury and not for the court.

14.STREET RAILROADS — Negligence — Crossing in View of Approaching Car — Question for Jury.— The public has the right to ride and drive across street car tracks in full view of approaching street cars if it is consistent with ordinary prudence to do so; it is not negligence as a matter of law to drive across a street car track when one sees a street car approaching; and the question is not for the court but for the jury.

Error to a judgment of the Circuit Court of the city of Richmond.Hon. Julien Gunn, judge presiding.Judgment for plaintiff.Defendant assigns error.

The opinion states the case.

T. Justin Moore, Edmund M. Preston and Archibald G. Robertson, for the plaintiff in error.

Thomas O. Moss and Leith S. Bremner, for the defendant in error.

GREGORY, J., delivered the opinion of the court.

Harry T. Wright instituted an action at law against the Virginia Electric and Power Company, a corporation, for damages for personal injuries sustained by him as the result of a collision between an automobile driven by him and one of the street cars of the Virginia Electric and Power Company.The parties will be referred to in accordance with the respective positions they occupied in the court below.

The case was tried by a jury and resulted in a verdict in favor of the plaintiff for $15,000, which was later approved by the trial court.

The collision occurred at the intersection of Mounment avenue and Lafayette street in the city of Richmond at about 7:50 P.M. on March 21, 1936.

The negligence charged against the defendant was that its motorman unlawfully operated the street car on the occasion in question without a proper lookout and without proper warning of its approach, at an excessive speed, in violation of specified common-law duties and contrary to the ordinances of the city of Richmond.

Monument avenue is one of Richmond's thoroughfares and runs east and west.It has a double driveway separated by a grass plot or parkway 35 feet 10 inches wide.Each driveway is 32 feet 3 inches in width.The entire width of Mounment avenue is 100 feet 4 inches.The driveway immediately north of the grass plot is for the use of west-bound traffic, while that immediately to the south is for east-bound traffic.The avenue is straight and level.

Lafayette street is also straight and level.It runs north and south, is about forty feet wide and carries the single track electric street-car line of the defendant.

The defendant owned and operated the street car which struck the plaintiff's automobile at the intersection.It was lighted and the motorman had an unobstructed view of the west-bound traffic.The weather was cloudy but dry and the visibility good.There was no traffic signal or traffic officer at the intersection.

At the time of the accident the plaintiff was on his way home, driving along the west-bound driveway of Monument avenue.He was familiar with the intersection.

The street car started north on Lafayette street, at its intersection with Monument avenue, from a "stand-still" position and increased its speed as it continued.Just prior to the accident, the plaintiff was driving at a speed of from twenty or twenty-five miles per hour, and, as he approached the intersection, he saw the street car on the opposite or south corner and saw that he had "plenty of time to clear the street car."He then put on his brakes which were in good condition and checked his speed.He looked to his right down Lafayette street for approaching traffic and saw that the way was clear.When within ten to fifteen feet of the car tracks he looked to his left again and saw the car "coming down on me, apparently at a pretty good rate of speed."He was then too close to the street car to stop so he turned his automobile to his right and was struck.

His injuries were serious and permanent.No question is made that the damages are excessive.The defendant company concedes that its primary negligence has been established, but claims that the plaintiff is barred of any recovery by his own contributory negligence as a matter of law.

We are often called upon to judicially determine in a given case whether the peculiar facts are sufficient to justify the court in submitting questions of negligence and contributory negligence to a jury, or whether the court from...