Va. Ry. & Power Co v. Oliver

• Decision Date: 15 June 1922
• Citation: 112 S.E. 841
• Court: Virginia Supreme Court
• Parties: VIRGINIA RY. & POWER CO. v. OLIVER.

112 S.E. 841

VIRGINIA RY. & POWER CO.

v.OLIVER.

Supreme Court of Appeals of Virginia.

June 15, 1922.

Error to Hustings Court, Part 2, of Richmond.

Action by W. J. Oliver against the Virginia Railway & Power Company. Judgment for plaintiff, and defendant brings error. Affirmed.

E. R. Williams and T. Justin Moore, both of Richmond, for plaintiff in error.

L. O. Wendenburg and T. Gray Haddon, both of Richmond, for defendant in error.

KELLY, P. This action was brought by W. J. Oliver against the Virginia Railway & Power Company, to recover damages for personal injuries sustained by him when a dairy wagon which he was driving was struck by one of the company's street cars at the intersection of Fourth and Main streets in the city of Richmond. The defendant demurred to the evidence, and this is a writ of error to the judgment of the trial court overruling the demurrer and awarding the plaintiff a recovery for the amount fixed by the jury in their conditional verdict.

The declaration charged the defendant with negligence in failing to keep a proper lookout for persons and vehicles at the crossing, in operating the car at an excessive and dangerous speed, and in failing to give notice of its approach as required by the city ordinance.

Fourth street runs north and south, and Main street runs east and west. The defendant operates a double-track car line on Main street. The accident occurred on the westbound track, which is situated slightly north of the middle of the last-named street.

Ordinances of the city, which were in evidence, provide that all vehicles and street cars going east or west shall have the right of way over all vehicles or street cars going north or south, and that street cars shall not run at a greater rate of speed than 12 miles an hour, and shall give ample notice of their approach to drivers of vehicles, and also "afford all reasonable opportunity for them, or either of them, to avoid collision or accident."

The plaintiff had come south on Fourth street, and was attempting to cross Main, when his wagon was struck by a west-bound street car, and he received the injuries for which this action was brought. He describes the character and extent of the precaution and lookout exercised by him as follows:

"As soon as I approached Main street, got as close as I thought to Main street as to stop in case a car or anything of that sort had been approaching anywhere in the way, I looked cast across the corner of Fourth street by the corner of the house, which I could see clear about 90 feet back, as well as I could estimate from the point I was at. * * * As near as I can get at it my horse was about 18 or 20 feet, something like that, from the track. Then, of course, the time I looked that way, and looked west to see that everything was clear, my horse was going (in a slow or jog trot) at the same time; all that happened in about the time it took me to get on the track, when the crash came. * * * After I looked to the east and west I kept straight on. * * * When the crash came was my first knowledge of it (the Car)."

Accurate and undisputed measurements appearing in the evidence show that when the horse was 18 or 20 feet from the rails the plaintiff had an unobstructed view of the track to the east for the entire length of the block back to Fifth street. He could, perhaps, not have seen a car much further off in that direction than Fifth street, because of the rather precipitous down grade on Main street to the east from the Fifth street crossing. After coming up the hill from the east to that crossing the tracks run slightly down grade to Fourth street.

The motorman gave no signal or warning of his approach, and in fact was not looking ahead, and was paying no attention whatever to the crossing.

A witness named Callis, a railroad conductor of many years' experience, who happened to be a passenger on the street car, testified that he had some knowledge of speed; that he would not like to estimate the speed of the car, but that it was behind time, and "was running very fast, " so fast as to make "trees and all dart by the windows." Another railroad conductor, also a passenger on the car, estimated the speed as being 15 or 18 miles an hour. The witness Callis further testified that for certainly as much as a minute, and probably longer, just prior to the accident the motorman was looking back over his shoulder, and...