Va. Ry. & Power Co v. Dressler

Decision Date16 March 1922
Citation111 S.E. 243
CourtVirginia Supreme Court
PartiesVIRGINIA RY. & POWER CO. v. DRESSLER.

Error to Hustings Court of Richmond.

Action by Naomi C. Dressier against the Virginia Railway & Power Company to recover damages for personal injuries. Judgment for the plaintiff, and defendant brings error. Reversed and remanded, with directions to impanel a jury to determine whether defendant was negligent, and whether such negligence was the proximate cause of plaintiff injury.

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

Fulton & Wicker and J. M. Turner, all of Richmond, for defendant in error.

BURKS, J. This is a personal injury case in which the defendant in error (hereinafter called the plaintiff) recovered a judgment against the plaintiff in error (hereinafter called the defendant) for the sum of $7,500, which we are asked to reverse for the reason hereinafter stated.

Naomi C. Dressier (the plaintiff) had resided in South Richmond for several years prior to the injury complained of, and she and her sister for about two years had been working in the factory of the British-American Tobacco Company, located near Broad street, west of First, in the western end of the city. In going to and from their place of business they traveled on cars of the defendant company, which operated a double-track electric street car line between the points mentioned. The defendant operated several different lines over Main and Broad streets between Fourteenth street and First street, among them a line known as Oakwood and Broad. The main line operated in South Richmond was known as the Hull street line. During the period aforesaid, about two years, the plaintiff had regularly boarded the Hull street car, asked for and obtained a transfer over the Main street line at the intersection of Fourteenth and Main streets, and been carried to her destination. On March 3, 1918, the defendant established and put into operation a through route by which certain Hull street cars entered the Main street line at Fourteenth street, and, passing over designated portions of Main and Broad streets, went to the western suburbs of the city. On this route, Fourteenth and Main was a transfer point for passengers going east, but not for passengers going west. According to the regulations of the company, the only proper transfer point for a passenger going West on Broad beyond First street was First and Broad.

On March 30, 1918, the plaintiff and her two sisters and a friend, all of whom workedat the factory of the British-American Tobacco Company, boarded one of these through cars in South Richmond, paid their fares, and asked for transfers at Fourteenth and Main west. The conductor punched and handed to each of them a transfer, without explanation or suggestion that the transfers were not what they desired, or could not be used for the trip desired. Fourteenth and Main was a proper transfer point for cars on the Hull street route known as "trippers, " or cars that turned back at that point. It does not appear that the plaintiff and her companions had notice of the establishment of the new through route and the regulations as to transfers therefrom, but the plaintiff's sister testified that after March 3, 1918, as well as before, they had obtained and used (without notice to the contrary, or demur) transfers west at Fourteenth and Main. The testimony for the defendant is clear that no one had authority to issue a transfer west at Fourteenth and Main, but the testimony of the conductor who issued the transfer is not altogether satisfactory as to transfers issued by him, for, after testifying that "I didn't give them west Main at Fourteenth, " he was asked by counsel for the defendant company, "Would you have given a transfer there at all west?" He replied: "I don't think I would, but, as to remembering whether I did or not, I don't remember." Brice, the division superintendent of the defendant company, also testified that he had heard "since the trial was on" that some of the company's men had accepted transfers west on Main at Fourteenth street and some had refused them, and that, if the plaintiff had asked for a transfer west at Fourteenth and Main, the conductor should have given her one at First and Main, and that "he should have told her."

The plaintiff and her companions accepted the transfers as usual without examining them to see how they were punched. The transfer actually given was lost in the confusion of the subsequent collision and was never found. An unpunched transfer of the same class was offered in evidence. The Hull street car on which the plaintiff was riding stopped in Fourteenth street at the usual stopping place for passengers to alight a short distance south of Main street. The point where the plaintiff actually alighted to the pavement on Fourteenth street was approximately 40 to 50 feet south of the southern curb line of Main street. She was one of the first passengers to alight from the car at this point, and was the first of her party. After alighting to the street on Fourteenth street, she walked over to the eastern side of Fourteenth street and waited on the sidewalk for her companions to join her there. She and her companions then walked along the sidewalk on Fourteenth street towards Main street until they reached the south curb of Main street, and then undertook to cross Main street from the south sidewalk to the north side of the street, where she and her companions intended to board the westbound Broad and Main street car, which would carry them to their destination on Broad street west of First. There was no Broad and Main car standing for passengers to board at Fourteenth and Main streets at that time, but such a car was approaching in sight some considerable distance, east of Fourteenth street.

The plaintiff and one of her half-sisters walked ahead, and the other half-sister and her friend came along just behind. The plaintiff and her companions intended to go to the usual stopping place for west-bound cars along Main street at Fourteenth, which was a short distance east of Fourteenth street, and to await for this approaching Broad and Main car to arrive, then to board the same, and to tender in payment of their fares on the Broad and Main car the transfers which they had received from the conductor of the Hull street car. The front of the Hull street car had then gotten on the east-bound Main street track, and, according to the plaintiff's testimony, completely obstructed her view and that of her other three companions west. When the plaintiff and her companions were about 5 feet from the track which they were going to cross they looked west and saw the Hull street car rounding the curve out of Fourteenth street into Main. About this time the motorman of the Hull street car looked west and saw the Oakwood and Broad car No. 138 west of Twelfth street, and before it had reached Thirteenth he realized that car No. 138 was running wild at a very high rate of speed towards the Hull street car, and thereupon reversed and quickly backed the front end of his car off the east-bound Main street track just far enough into Fourteenth street to get out of the way of car 138, which dashed by the front of the Hull street car, just missing it, running at 40 or 50 miles an hour, and ran into and struck the plaintiff, who was then about a car length east of the Hull street car and almost across the east-bound main street track, inflicting the injuries here complained of. The testimony as to whether the plaintiff and her companion looked west for approaching cars just before stepping on the track is conflicting.

Most of the assignments of error relate to the rulings of the trial court in granting or refusing instructions. They embody the principles of the case and the theory upon which the trial was had. It is unnecessary to quote these instructions, as the determination of the underlying principles will settle the propriety of the trial court's ruling thereon. As the relations of a carrier to a passenger are different from those of a carrier to a pedestrian crossing its tracks, it was important todetermine whether the relation between the defendant and the plaintiff was that of carrier and passenger or of carrier and pedestrian in the street; the plaintiff insisting that she was a passenger, and the defendant that she was not: (1) "Because she was attempting to transfer at a place which was not the transfer point"; and (2) because, at the time of the injury she was a mere pedestrian walking along the public street over which the defendant had no control." Of these two in their order.

For nearly two years the plaintiff had been boarding the defendant's cars at the same point, transferring at Fourteenth and Main, and riding to the same destination, without question or objection or objection on the part of any one. She had no notice, so far as the record disclosed, of any change in the regulations of the company, and, if the company had any intention of insisting on the change, the conductor (in the language of the division superintendent) "should have told her." Furthermore, from March 3, 1918, the date of the change, till the date of the injury, the plaintiff had been receiving and riding on such transfers without objection. If the plaintiff's transfer had been punched for First and Broad, and she had offered it for passage from Fourteenth and Main, and been refused, the rule laid down in Va. & Southwestern R. Co. v. Hill, 105 Va. 729, 54 S. E. 872, 6 E. R. A. (N. S.) 899. that as "between the passenger and conductor the terms of the ticket are conclusive" might have been applicable. But no such question is here involved, and we do not wish to be understood as holding that the rule applies to transfers issued by street railways. Notwithstanding the regulations of the defendant company, and the testimony of several of its witnesses, a number of witnesses, one of them a witness for the defendant,...

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26 cases
  • Newman v. Newman
    • United States
    • Court of Appeals of Virginia
    • 2 Marzo 2004
    ...to control the judgment in the subsequent suit when the very point is [involved] for decision. Va. Ry. & Power Co. v. Dressler, 132 Va. 342, 350-51, 111 S.E. 243, 245-46 (1922) (Burks, J.) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821) (Marshall, C.J.)). Dicta ......
  • Our Lady of Peace, Inc. v. Morgan
    • United States
    • Supreme Court of Virginia
    • 30 Agosto 2019
    ...claim on procedural grounds. Although "dicta are entitled to respect, especially if supported by reason," Virginia Ry. & Power Co. v. Dressler , 132 Va. 342, 350, 111 S.E. 243 (1922), we nevertheless "have always to bear in mind the oft-quoted statement of Chief Justice Marshall in Cohens v......
  • King William Cnty. v. Jones
    • United States
    • Court of Appeals of Virginia
    • 9 Agosto 2016
    ...to the case outside, but their possible bearing on the very case is seldom completely investigated.Va. Ry. & Power Co. v. Dressler , 132 Va. 342, 350–51, 111 S.E. 243, 245–46 (1922) (quoting Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821) ). Thus, although the Supreme C......
  • Cooper v. Com., Record No. 1392-08-3.
    • United States
    • Court of Appeals of Virginia
    • 11 Agosto 2009
    ...the judgment in the subsequent suit when the very point is [involved] for decision. Id. (quoting Va. Ry. & Power Co. v. Dressler, 132 Va. 342, 350-51, 111 S.E. 243, 245-46 (1922) (Burks, J.) (quoting in turn Cohens v. Virginia, 6 Wheat. 264, 19 U.S. 264, 399, 5 L.Ed. 257 (1821) (Marshall, I......
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