Va. Ry. & Power Co v. Bailey

• Decision Date: 13 June 1918
• Citation: 96 S.E. 275
• Court: Virginia Supreme Court
• Parties: VIRGINIA RY. & POWER CO. v. BAILEY.

96 S.E. 275

VIRGINIA RY. & POWER CO.

v.BAILEY.

Supreme Court of Appeals of Virginia.

June 13, 1918.

Error to Hustings Court of Richmond.

Action by Garnett A. Bailey, who sues, etc., against the Virginia Railway & Power Company. In trespass on the case for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

This is an action of trespass on thef in the court below (hereinafter designated p case by the defendant in error, plaintiflaintiff), against the plaintiff in error (hereinafter designated defendant), for damages for injuries occasioned the plaintiff by a fall in alighting from a street car, badly spraining an ankle, etc.

There was a trial by jury, a verdict and judgment in accordance therewith in favor of the plaintiff, and the defendant brings error.

The Material Facts.

There is no conflict in the evidence as to the following material facts in the case, namely: On signal of the plaintiff for the car to stop, it was brought to a stop at a usual stopping place with the front of the car about on line with the near building and inner sidewalk line of a street intersecting with the street on which the car was moving. The car contained the plaintiff and four other passengers, and also the motorman and conductor of the car. The plaintiff testified as the only witness in her own behalf. The conductor, motorman, and three of the other four passengers testified as witnesses in behalf of the defendant. The failure of either side to call the fourth passenger as a witness is not accounted for. The car aforesaid was an open, summer car, going south, about 20 feet in length, of the usual construction, with handholds upon the upright standards at the ends of the seats above the running board, and a running hoard on the side for use of passengers in alighting or boarding the car. The plaintiff, just preceding the accident, was seated about midway of the car. After the plaintiff had given the stop signal, when the car was about midway of the block on which the stop was made, she slided on her seat out to the west end of it, on her right-hand side as she faced the way the car was moving, and, before the car stopped, she arose, and with her left hand upon the handhold at that end of her seat, and with her gloves in her right hand, prepared to alight from the car as it approached the usual stopping place near by. She was thrown from the car to the pavement, not while she was stepping from the running board to the pavement, but while she was in the act of stepping from the platform of the car, where she had arisen from her seat, to the running board of the car. She was thrown from the running board at the moment she placed her right foot upon it and was in the act of taking her left foot down upon it. After the plaintiff fell upon the pavement the car moved about ten feet. She was thrown from the running board of the car either by a starting of the car after it had stopped, or by its stopping while she was in the act of stepping upon the running board aforesaid. In either case there is no evidence that such movement or cessation of movement of the car was violent or constituted any negligence on the part of the defendant, so far as the character of that movement is concerned. The time of such movement or cessation of movement, in relation to the stop, whether after the stop or as constituting the stop, is the pivotal fact in issue. Upon this narrow, but vital, point it is claimed by the plaintiff that the evidence is conflicting.

The Conflict in the Testimony.

The plaintiff on the point in question testified on her examination in chief as follows:

"Q. Please tell the jury what happened before and at the time of your accident, how it happened, in your own way?

"A. Well, I boarded the car at 2:35, and I gave the signal after leaving Hanover avenue, signaled with my left hand. I slid myself over to this side of the car (indicating). I stood up before the car stopped. The second the car stopped, just the time it stopped, I stepped down, and, as I was in the act of taking this left foot down, the car jerked, throwing me.

"Q. Before you stepped down the car then had stopped and was standing still?

"A. It stopped.

"Q. Did you take hold of any part of the car?

"A. Yes; I took hold of the handle of the car, I guess you might call it, with my left hand.

"Q. You took hold of that before you stepped down?

"A. Yes, sir.

"Q. At the time the car started, then, as you recollect it. the car started forward, and you had your right foot—

"A. I stepped down with my right foot.

"Q. On the running board?

"A. Yes, sir.

"Q. Your left foot up?

"A. Yes, sir.

"Q. Did you have anything in your hands?

"A. I had one pair of gloves in my right hand.

"Q. How were you thrown?

"A. Well, when the car jerked, I teas thrown this way (indicating), kind of forward, and it took my feet from under me, and I fell on my back with my left foot under me." (Italics supplied.)

On cross-examination the plaintiff made practically the same statement, except in somewhat more detail, showing more distinctly that she was stepping on the running board, and not from it to the pavement, when she was thrown, and that she was "twisted around" as she fell, and in that way fell on her back. Such statement was as follows:

"Q. Now, I wish you would describe to the jury again just how you got off that car. I didn't understand it. Just what did you do as you approached Grove avenue and Robinson street?

"A. I rang the bell with my left hand after leaving Hanover avenue. I slided myself right over to this side of the car. I stood up before the car stopped. I caught hold of this running part of the car on the handle with my left hand.

"Q. You had some gloves in your right hand?

"A. I had some gloves in my hand.

"Q. Then, what happened?

"A. I stood there just for a second before the car stopped. The second the car stopped, or just as soon, as the car stopped, I stepped down with my right foot.

"Q. To the ground you mean?

"A. To the running board.

"Q. With your right foot?

"A. Yes.

"Q. Then how did you get to the ground?

"A. I was thrown to the ground.

"Q. So you never deliberately stepped to the ground?

"A. No; I never deliberately stepped to the ground. I stepped down. As I was trying to take this foot down, the car jerked.

"Q. You had just stepped with your right foot to the running board from the floor of the car, and your left foot was still on the floor of the car?

"A. I was taking my left foot down.

"Q. When you fell; is that right?

"A. As soon as I stepped down with my right foot, I was in the act of taking my left foot down. Before I got my left foot down, the car jerked, throwing me kind of forward, or I went just that way (indicating). And, as it took my feet from under me, I fell on my back; I was kind of twisted around; I fell on my left foot.

"Q. Do you mean to say you were made unconscious, Miss Bailey?

"A. The shock was so great to me and I was so nervous and excited, that I just did not recall anything that happened.

"Q. You are positive that the moment that the car stopped you stepped down with your right foot from the platform to the running board?

"A. The minute—the second that it stopped. It had stopped." (Italics supplied.)

The testimony of all of the witnesses for the defendant concur to the effect, in substance, that there was but one stop of the car I in the locality in question, and that was at the regular stopping place aforesaid, and that the plaintiff was thrown from the car by its stopping while she was in the act of stepping from the platform where she stood to the running board, just at the time the car stopped; that there was no jerk of the car, except that due to such cessation of movement; that such cessation of movement was not violent or unusual, but the contrary, and one of the passengers on the ear, who sat on the west end seat immediately behind the plaintiff as she was getting off the car, testified (as a witness for defendant):

That plaintiff, as she stepped on the running board, "let go. As she let go, I grabbed at her to try to catch her, but she was too far gone. Q. You grabbed at her? A. Yes, sir; because I saw she was going to fall. The car had not come to a stop. Q. You didn't catch her though? A. No, sir; I missed her entirely."

H. W. Anderson, A. B. Guigon, and T. Justin Moore, all of Richmond, for plaintiff in error.

O'Flaherty & O'Flnherty, of Richmond, for defendant in error.

SIMS, J....