Va. Electric & Power Co v. Vellines

• Decision Date: 14 June 1934
• Citation: 175 S.E. 35
• Court: Virginia Supreme Court
• Parties: VIRGINIA ELECTRIC & POWER CO. v. VELLINES.

175 S.E. 35

VIRGINIA ELECTRIC & POWER CO.

v.VELLINES.

Supreme Court of Appeals of Virginia.

June 14. 1934.

Error to Law and Chancery Court of City of Norfolk.

Action by W. L. Vellines against the Virginia Electric & Power Company. Judgment for plaintiff, and defendant brings error.

Reversed and rendered.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and GREGORY, JJ.

Leigh D. Williams, of Norfolk, and T. Justin Moore, of Richmond, for appellant.

O. L. Shackleford and Daniel Coleman, both of Norfolk, for appellee.

HOLT, Justice.

Plaintiff, W. L. Vellines (defendant in error), is seeking to recover for damages to his automobile and for injuries to himself, sustained in a collision with one of the defendant's street cars at what is known as the 5th street crossing on its line running from Ocean View to Willoughby Spit. The car company there operates a double track electric line which can be crossed in safety only at certain designated crossings. Its tracks run east and west, and on either side of them, 8.2 feet distant, is a 16-foot concrete road. The track along which the car came that did the damage is straight for 1, 000 feet. Plaintiff lived in that neighborhood and was familiar with the local situation. He came into the street on a lane from his home which intersected the highway 150 feet from 8th street, turned to his right, continued to the west until 8th street was reached, when he turned to his left and was struck in crossing the west-bound track.

A plat which we insert in this opinion makes it easier to understand the situation. Certain blocked figures there are supposed to represent successive positions of the automobile. Of course, they merely represent the draughtsman's ideas of what these positions were. The accident occurred at 6:54 a. m. on January 22, 1932. On that day the sun rose at 7:15. Interior lights in the street car had been cut out but the headlight was burning.

Plaintiff has recovered, a verdict and judgment for $500.

Mr. Vellines, on direct examination, testified as follows:

"Q. Just tell the jury how tills accident occurred, Mr. Vellines.

"A. That morning I came out of my lane and backed back, and looked around as I came into the road, all around good, to see everything was clear, and I got the car started and kept looking, and there was no car in sightat all, and when I got near the crossing, some little distance from the crossing, I put the window down, and I put my hand out, and was nearly across the street car track and the crash came and knocked us.

"Q. When you started on that track, how far away was the car?

"A. When I first saw it, it looked like about one hundred feet or two hundred feet, or something like that--about one hundred feet.

"Q. I am speaking of the car that struck you; how far was it away?

"A. I couldn't tell you exactly how far, but a hundred or two feet.

"Q. Have you any idea as it came around the curve?

"A. There was no car in sight when I first looked around.

"Q. There was no car in sight?

"A. No car in sight.

"Q. Did you continue to look for a car?

"A. Yes, I kept on looking.

"Q. Did you look both ways?

"A. Yes; I saw one coming from that way, and I had plenty of room.

"Q. A car was coming from Willoughby Beach?

"A. Yes.

"Q. And the car which struck you, which way was it going?

"A. To Willoughby Beach.

"Q. From Ocean View?

"A. Yes.

"Q. When you got to the track how far was the car that struck you away?

"A. I couldn't hardly tell you to save my life.

"Q. Did you see it?

"A. No, I didn't see no car, or I would never have been struck.

"Q. Were you looking?

"A. Yes, I was looking; I looked down that way; I looked this way until I thought I was safe, and I was looking at this car and my wife hollered.

"Q. Did you go on up there without looking in both directions?

"A. No.

"Q. When you got on the track was the car going from Ocean View towards Willoughby in sight?

"A. When I got on the track?

"Q. Yes.

"A. No, sir.

"By the court:

"Q. What did you say--'No, sir, ' or 'I don't know'?

"A.' I said no, sir."

He further testified in chief:

"Q. Do you know the distance from the crossing to the curve?

"A. From the crossing to the curb?

"Q. The curve in the direction of Norfolk?

"A. Do you mean the right-hand side?

"Q. I mean the curve in the street where the car tracks curve.

"A. Oh, the curve: I guess about a thousand feet.

"Q. When you started on the track, had the front of it come around the curve?

"A. Come around the curve?

"Q. Yes, the curve around one thousand feet?

"A. When I looked there wasn't no car in sight at all.

"Q. There was no car?

"A. No. I put my hand out, and I was in second gear--

"Q. (Interposing) Did you give the proper signal--

"Mr. Williams: (Interposing) You interrupted him.

"By Mr. Coleman:

"Q. Were you in first or second gear?

"A. I went in first, and just about the time I got on the track I think I pulled in second gear."

On cross-examination he said:

"Q. I believe you said the first thing you knew of any street car was when the impact took place?

"A. Practically.

"Q. In other words, you didn't see this particular street car at all that struck you until the impact took place?

"A. Every time I looked there was no car in sight.

"Q. Then my statement, I assume, from what you just said, is correct, that you did not see the street car which struck you until it did actually strike you?

"A. It might have been a little distance from me; it might have been a little distance, you understand, but I was practically across the track when I saw it. I couldn't help but seeing it a little ways from me.

"Q. What would you call a little ways-- two or three feet?

"A. Ten or fifteen feet, I suppose. I couldn't say exactly to save my life.

"Q. I understood you, in response to Mr. Coleman's questions, to say you didn't see it until the impact took place; am I mistaken in that?

"A. I say it must have been about ten or fifteen feet, it was so close on me.

"Q. Then I believe you say you did see it, according to your best judgment, when it was about ten or fifteen feet from you?

"A. Yes.

"Q. And, at that time, you were already on the track?

"A. I was nearly across the track.

"Q. You were nearly across the track?

"A. Yes, sir.

"Q. And the impact took place almost before you could think?

"A. It was pretty quick, as fast as it was coming.

"Q. Now, Mr. Vellines, when you came out of your driveway on the boulevard, did you look to your left?

"A. I certainly did.

"Q. And did not see any street car?

"A. There was no street car in sight.

"Q. And then you traveled 150 feet and on to the track and looked again?

"A. I looked and looked as I went along; I turned every once in a while and looked, and put my window down and put my hand out.

"Q. But you never did see the street car until you had practically crossed the track and it was in ten or fifteen feet of you; that is correct, isn't it?

"A. Yes, sir."

Again he said:

"Q. Now just before you made that turn, did you look to see if the street car was coming up in the rear of you?

"A. Yes, sir, I suppose about as far as the end of that rail.

"Q. The end of what rail?

"A. The iron rail there; I guess about twenty feet.

"Q. You looked when you were about twenty feet away?

"A. Yes, sir.

"Q. And you did not see the street car?

"A. No car was in sight then.

"Q. You could see down to the curve?

"A. I couldn't see clean to the curve without looking back of the car.

"Q. When you started in to make the turn you had a clear view then?

"A. I have already explained that to you.

"Q. Didn't you have a clear view then to your left?

"A. I had as clear view as I could to see some distance down.

"Q. You could see to the curve then?

"A. No, I couldn't see to the curve.

"Q. Why?

"A. It was not real light anyhow.

"Q. Did you have lights on your automobile?

"A. Yes, I had lights on my automobile.

"Q. You could see lights on a street car a long way off?

"A. I didn't see any. I didn't see any car."

To the same effect is this final statement:

"Q. And you were traveling about twelve miles an hour?

"A. Just about that. I was getting into second gear.

"Q. And, at that time, you looked to your left as far as you could see down the track?

"A. Yes, sir.

"Q. And there was no street car in sight?

"A. There was no street car in sight, and when I looked up I saw the other car, and I could just see it ten or fifteen feet and it come plowing and tore us right up."

[I] These somewhat extended excerpts from plaintiff's testimony are made necessary by the fact that the decision of this case turns upon his evidence. He is bound by his account of what he saw and did. Massie v. Firmstone, 134 Va. 450, 114 S. E. 652, and cases which have followed it. A plaintiff who has no case upon his own evidence has no case at all. He said that he looked and saw no car coming, and that none was in sight when he signaled his purpose to turn into 8th street, for he looked and saw none until it was immediately upon him. He, at least, cannot complain because we accept his statements as true.

It is contended that it was still dark at the time of the accident. If he could not, because of darkness, see the street car, its motorman, for the same reason, could not have seen him or any signals which he might have made. The accident occurred at about 6:54 a. m. On that day, January 22, 1932, the sun rose at 7:15. The official record of the United States Weather Bureau tells us that the visibility then was good. The day was cloudy but the ceiling was high, and, as we have seen, the headlight of the street car was burning. The car which struck him was going rapidly. Vellines estimates its speed from 50 to 60 miles an hour, but the evidence is that cars of this type cannot go more than 37 miles an hour. The automobile was knocked 20 or 25 feet and landed against a telegraph pole. The street car, according to the plaintiff's evidence, ran for 145 or 150 feet beyond the crossing before it was brought to a stop.

Without undertaking any discussion of the evidence, we are of opinion that it...