Wash. & O. D. Ry v. Warner

• Decision Date: 16 January 1919
• Citation: 97 S.E. 799
• Court: Virginia Supreme Court
• Parties: WASHINGTON & O. D. RY. v. WARNER.

97 S.E. 799

WASHINGTON & O. D. RY.

v.WARNER.

Supreme Court of Appeals of Virginia.

Jan. 16, 1919.

Error to Circuit Court, Alexandria County.

Action by Arthur C. Warner against the Washington & Old Dominion Railway. Judgment on verdict for plaintiff, and defendant brings error. Affirmed.

R. H. Yeatman and W. J. Lambert, both of Washington, D. C, and C. E. Nicol, of Alexandria, for plaintiff in error.

Crandall Mackey, of Washington, D. C, for defendant in error.

WHITTLE, P. Defendant in error, Arthur C. Warner, brought this action under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]) against plaintiff in error, the Washington and Old Dominion Railway, to recover damages for personal injuries suffered by him while a motorman on one of defendant's cars in collision with another car, the property of defendant, which he alleges was due to the defendant's negligence. The jury returned a verdict for plaintiff, upon which the judgment under review was rendered.

In outline, the situation out of which the litigation arose is as follows:

Defendant owns and operates an electric double-track trolley line of railway from its eastern terminus at Thirty-Sixth and M Streets N. W., in the city of Washington, District of Columbia, extending in a southerly and westerly direction to Great Falls, on the Potomac river in Fairfax county, Va., and beyond. Cars leaving Washington destined for Great Falls and intermediate stops traverse the west-bound track, whilst cars returning to Washington use the east-bound track.

On October 26, 1915, plaintiff left Washington at 3:30 p. m., in car No. 4, for Great Falls, without being informed and without knowledge of the fact that an unscheduled car, No. 72 (whose destination was Cherry Dale, a station on the west-bound track several miles east of Great Falls) had been sent out on the same track just 2 minutes ahead of it, in violation of the rule of the company which required that all cars running in front of a regular scheduled car should have a clearance of 10 minutes. On reaching Cherry Dale No. 72 had to discharge its passengers and proceed thence westwardly a few hundred feet to a switch or cross-over, and to pass over the same to the east-bound track, and thence return to Washington. The evidence in support of the opposing theories as to the cause and manner of the collision is irreconcilably conflicting. On behalf of plaintiff it tends to show that when No. 4 reached Cherry Dale and had discharged its passengers, it proceeded on its way at the rate of 10 or 12 miles an hour; that the first intimation plaintiff had of the presence of No. 72 on the track ahead of him was when, in about 150 feet of the cross-over, he discovered the car some 50 feet west of that point; that it was approaching him at the rate of 15 or 20 miles an hour; that the collision occurred about 1 minute after he left Cherry Dale; that No. 72 gave no notice of its presence on the track, either by whistle, bell or gong, and did not send back a flagman to give warning; that from his seat on the stool in the middle of the front vestibule of the car he could not see the cross-over from Cherry Dale. When he came in sight of No. 72 he did all in his power to stop his car and avoid a collision; he tried to reverse, but that did not work, and he then shut off the power and applied the brakes, using all the air he had, and remained at his post until the impact occurred and his hands were cut with the broken glass and he was knocked back on the floor in an unconscious condition. Immediately before the collision he saw no crew on the end of No. 72, which was backing toward him, and there was nobody at the brake to stop the car.

The testimony of the defendant was diametrically opposed to that of plaintiff. It was said that No. 4 ran down upon No. 72 while plaintiff was sitting on his stool with his head hanging down and all that could be seen was his cap; that his face was not visible; that when he had approached to within 25 or 30 feet of No. 72, the motorman, whose car was then partly on the cross-over, yelled at him and blew the whistle, but he gave no heed to either signal and did not move; that he made no effort whatever to stop his car, which at the speed he was going, 8 or 10 miles an hour could have been stopped without using air in time to prevent the collision.

The Jury visited the scene of the accident, and had the benefit that a view affords of apprehending and applying the evidence. Under the drastic demurrer to evidence rule, the verdict of the jury has resolved the conflict of evidence in plaintiff's favor, and their finding is conclusive upon this court.

As was said by Keith, P., in delivering the opinion of the court in Southern Ry. Co. v. Aldridge, 101 Va. 142, 149, 43 S. E. 333, 335:

"We are aware, of course, that the evidence with respect to many of these facts is strongly controverted. It may be conceded that the weight of evidence is with the plaintiff in error as to some of them, but that avails nothingunder the rule governing demurrers to evidence."

Following that rule, we must hold that the negligence of the defendant, as charged in both counts of the declaration, has been established. The difference between this case and that of Mason v. Post, 105 Va. 494, 54 S. E. 311, 11 L. R. A. (N. S.) 1038, cited and relied on by plaintiff in error, is obvious. There the fact was undisputed that the accident resulted from the grossest negligence of plaintiff, a motorman, who insisting upon his right of way, had a head-on collision with an approaching car in plain view, without making the slightest effort to avoid it.

It only remains to inquire whether the trial court has committed error of law which demands the reversal of its judgment.

The first assignment of error is to the action of the court in overruling...