Va. Ry. & Power Co v. Wellons

• Citation: 112 S.E. 843
• Parties: VIRGINIA RY. & POWER CO. v. WELLONS.
• Decision Date: 15 June 1922
• Court: Virginia Supreme Court

112 S.E. 843

VIRGINIA RY. & POWER CO.

v.WELLONS.

Supreme Court of Appeals of Virginia.

June 15, 1922.

Error to Hustings Court of Richmond.

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

M. M. McGuire and T. Justin Moore, both of Richmond, for plaintiff in error.

David A. Harrison, Jr., of Hopewell, and Byrd & Gwathmey and Fulton & Wicker, all of Richmond, for defendant in error.

KELLY, P. This action arises out of a collision between an automobile owned and operated by the plaintiff, J. D. Wellons, and a street car owned and operated by the defendant, the Virginia Railway & Power Company. Wellons was slightly injured, and his automobile was wrecked. The jury returned a verdict in his favor for $1,250, upon which the trial court entered the judgment under review:

The accident occurred on Broad street, in the city of Richmond, in the block between Belvidere on the west and Henry street on the east. Broad street, on which the de-fendant maintains and operates a double-track street car line, runs east and west. Belvidere and Henry streets run north and south. The street car was going west, and the automobile, which had been headed east on the south side of Broad street, was crossing the tracks within the block for the purpose of making a complete turn. The westbound track, on which the collision occurred, is slightly north of the middle of the street.

Just prior to the accident the plaintiff came north on Belvidere street to Broad, and then east on the south side of Broad to a lank about the middle of the block, where he stopped and filled the radiator of his motor. He then started east again, intending directly to make the turn by crossing the tracks to the north. When he had proceeded east about 15 feet from the water tank he stopped to allow an east-bound street car and an east-bound automobile to pass him. We quote from his testimony at this point as follows:

"Then I started up my car and turned off, and I looked over in the middle of the next block across Henry street, and saw a car coming west. I pulled up to the car track, and thought I had plenty of time to give me the signal to turn into the car track. About the time I got to the car track, near it, or somewhere about the car track, I looked, as I usually do, and I saw this car coming west. It was then across Henry street, about 175 feet from me, I should judge; something like that. I pulled right on across, thinking I had plenty of time, and the time I got on the track good, got about a little over the track, it hit me. * * * It hit kind of behind the seat, in the door, and behind the seat of the car. It was a little over halfway of the rear of the car. I was just turning across the street going west. I didn't have the engine turned all the way west, but had my wheels turned."

He testified further that at the moment of the collision the front wheels of his machine were entirely across the west-bound track; that he was running in low gear, about 4 miles an hour; that the street car must have been running about 30 miles an hour, because otherwise it would not have struck him; and that after the collision the street car ran about 210 feet before it stopped—more than twice the distance requisite for a quick stop at a lawful rate of speed.

The plaintiff's witness, Stennette, who was riding with him, testified that he first saw the street car as the automobile was "right on" the first or southern track; that the street car was then about 30 or 35 feet east of Henry street, and about 170 or 175 feet east of the point of collision; that at that time he "did not realize any danger"; that he did not notice the street car again until it was within 30 or 35 feet of them; and that he thinks, the car, basing his estimate "on driving, and the speed it was coming and the way it knocked us, " was about 30 or 35 miles an hour.

The street car, under the terms of a city ordinance in evidence, had the right of way, and it would have been the duty of the plaintiff to yield if, when he started across the tracks, the relative position of the two vehicles was such as that a reasonably prudent man would have foreseen that a collision was likely to occur unless one or the other stopped. Va. Ry. & P. Co. v. Hill, 120 Va. 397, 405, 91 S. E. 194. By another city ordinance the street car was prohibited from running at a speed of more than 12 miles an hour.

There were a number of eyewitnesses to the accident, and there is considerable conflict in the testimony as to the speed of the car and the relative positions of the two vehicles when the plaintiff was approaching the track on which the accident occurred. It is not necessary at this point to say more with reference to the evidence than that the jury, as the triers of the facts, were well warranted in finding them as testified to by the plaintiff and his companion. Taking these facts as true—and, of course, they must be so taken in this court—it is plain that the assignment of error based on the contention that the verdict should have been set aside because the plaintiff was guilty of contributory negligence must be overruled. Coutributory negligence in cases of this kind is usually, though not always, a matter to be passed on and determined by a jury. Va. Ry. & P. Co. v. Oliver, decided to-day, 112 S. B. 841.

In the instant case the plaintiff and his companion, just as they were about to enter the first or southern track, saw the car 175 feet away, with the Henry street crossing intervening. They then had, even at the perhaps too liberal estimate contended for by the defendant, not over 35 feet to go before the rear end of the automobile would be entirely clear of the second or west-bound track. The plaintiff testified that he thought he had plenty of time to cross, and Stennette says he realized no danger at that time. It seems to us that an ordinarily prudent driver might well have taken the same view of the situation; and, at any rate, we cannot say that the jury was bound under the evidence to find the plaintiff guilty of contributory negligence.

It is insisted in the brief for the defendant that the plaintiff and his companion observed the excessive speed of the car, 30 or 35 miles an hour, when they first saw it beyond the Henry street crossing, and a mathematical calculation, based upon the relative speed of the vehicles and the distance to be traversed by each, is offered to show that a collision was inevitable if the car was running as fast as they say it was. But the plaintiff could hardly have been expected to make such acalculation at the moment, or to gauge his movements with mathematical accuracy; and, apart from these considerations, a conclusive answer to the defendant's contention in this connection is that neither the plaintiff nor his companion said anything which fairly indicates that they based their estimate of the speed of the car upon its appearance when they first observed it 175 feet away, and 30 to 50 feet east of Henry street. It is true that they say they did not observe any reduction in the speed of the car before the collision occurred, but their estimates as to the rate of speed at which it was running are clearly shown in their testimony to have been deduced subsequently from the fact that the car would not have caught them at all, and would not have run so far beyond the point of collision before stopping, if it had not been running at about the rate fixed in their estimate. This conclusion on their part as to the speed of the car is supported by the mathematical calculation above referred to, and it is in the retrospect, rather than in advance, of the accident that there is time and opportunity to make and apply such calculations.

We have dealt somewhat fully with the question of contributory negligence, because considerable stress was laid upon it in the briefs; but, as we understand counsel for the defendant, the position upon which they chiefly rely is that the court erred in allowing the jury to consider the doctrine of last clear chance, and also in the manner in which that doctrine was set forth in the instructions. If they are right in this position, the error is material, for the case was undoubtedly tried in part upon the theory that, even if the plaintiff was guilty of contributory negligence, he ought still to recover because the defendant had a last clear chance to avoid the accident. In other words, the jury had before it two theories, upon either of which it might have found for the plaintiff, and,...