Wash. Southern Ry. Co v. Lacey

• Decision Date: 25 March 1897
• Citation: 94 Va. 460,26 S.E. 834
• Parties: WASHINGTON SOUTHERN RY. CO. v. LACEY.
• Court: Virginia Supreme Court

26 S.E. 834

94 Va. 460

WASHINGTON SOUTHERN RY. CO.

v.LACEY.

Supreme Court of Appeals of Virginia.

March 25, 1897.

Objections to Evidence — Railroads —Regulation of Speed.

1. Where evidence is offered, a portion of which is admissible and a portion not, and the objection is general, it will be overruled.

2. A city ordinance limiting the speed of trains in the street to five miles an hour, and providing that a bell shall be rung while the locomotive is in motion within the city limits, is not unreasonable.

3. The construction of an ordinance in evidence is for the court, and not for the jury.

4. An instruction in an action for injuries at a crossing, that plaintiff had a lawful right to cross the street where the accident occurred, or any part thereof, is not misleading, where the jury are told that the rights and obligations of the railroad and travelers are reciprocal, but the train has the right of way.

5. An instruction that the burden of proof is on defendant railroad company to establish contributory negligence of plaintiff, injured at a railroad crossing, is not prejudicial to defendant where the jury by another instruction is charged as to the duty of plaintiff, and whatnegligence on his part would deprive him of the right to recover; and that if, from the evidence, it appeared that plaintiff contributed to the accident, he could not recover.

6. An instruction is properly given where there is any evidence tending to prove the facts on which it is based.

7. A finding that a railroad company was negligent in running its trains in a city was warranted by evidence that it was running at a speed four times that permitted under the ordinance of the city, and that no signals of its approach at a crossing were given.

8. Where plaintiff was well acquainted with a crossing, yet, without looking or listening, he drove upon it, after stopping and looking at a point 250 feet from the crossing, where only a partial view of the track could be had, though he could have soon such train after leaving such point if he had looked, he was guilty of contributory negligence.

Error to circuit court of city of Alexandria.

Action by W. H. Lacey against the Washington Southern Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

F. L. Smith, for plaintiff in error.

Edmund Burke, for defendant in error.

BUCHANAN, J. William H Lacey brought an action against the Washington Southern Railway Company to recover damages for injuries done to his person and property by the alleged wrongful and negligent conduct of the railway company at a street crossing in the city of Alexandria. Upon the trial of the cause the verdict of the jury and the judgment of the court therein were for the plaintiff, and to that judgment this writ of error was awarded.

The first assignment of error is to the action of the circuit court in admitting in evidence two ordinances of the city of Alexandria, and in refusing to give the nineteenth instruction asked by the defendant.

One of the ordinances referred to provided, among other things, that it should not be lawful for an engine or car to be run in the city at a greater rate of speed than five miles per hour; and that every locomotive run in the city should be furnished with a bell of not less than 30 pounds weight, which should be rung during the entire time the locomotive is in motion within the limits of the city.

The other was an ordinance authorizing the Alexandria & Fredericksburg Railway Company (to whose rights it is averred the Washington Southern Railway Company succeeded) to lay its tracks along Fayette street from Hoffs Run to the northern limits of the city, and providing that the railway company should be subject to such provisions as apply to other railroads which have been permitted to occupy streets in the corporate limits, and that the locomotive steam engines used by the company should not run at a greater rate of speed than five miles an hour within the corporate limits, and that a bell of not less than 30 pounds in weight should be attached to each locomotive, and be rung during the whole time such locomotive shall be in motion within the city limits.

These ordinances were offered in evidence as a whole. The objection to them was general, and not to each separately. There can be no doubt that the general ordinance providing how all railroad companies should run their locomotives through the city was admissible in evidence. This being so, the court properly overruled the objection, even if the special ordinance as to the Alexandria & Fredericksburg Railway Company (as to which we express no opinion) were admissible upon proper objection. Where evidence is offered, a portion of which is admissible and a portion not, and the objection is general, the objection must be overruled. Harriman v. Brown, 8 Leigh, 697; Friend v. Wilkinson, 9 Grat. 31; Parsons v. Harper, 16 Grat. 64; Trogdon's Case, 31 Grat. 863, 881.

The defendant company's instruction No. 19, which the circuit court refused to give, is as folllows: "If the jury believe from the evidence that the portion of the city of Alexandria lying west of Patrick street and north of Pendleton street consists of fields, unimproved by houses and buildings, and used for the purposes of cultivation, grazing, etc., and that streets have not been opened in said portion of the said city of Alexandria, and if they believe that defendant's line of railway traverses said portion of the city of Alexandria lying west of Patrick and north of Pendleton street, and if they shall also believe from the evidence that Fayette street is open from Oronoco street to Pendleton street, a distance of one square, yet if they believe from the evidence that on the east side of said railway from Oronoco street to the city limits on the north there are only two houses, the one known as 'Colross, or Mason's Wall, ' and one other, and that on the west side of said railway between said points there are no houses, and the intervening land consists of open commons and fields used for agricultural purposes, then they are instructed that the ordinance qffered in evidence by the plaintiff, limiting the speed of railway trains in said territory, is unreasonable and void, and inoperative in said territory."

The point at which the plaintiff was injured was not in the agricultural portion of the city limits mentioned in the instruction, but at a street crossing proper, within some three blocks of the defendant company's depot in the city. Whether the ordinance of the city regulating the speed of railway trains was unreasonable, so far as it applied to that territory, it is unnecessary to decide. So far as it applied to the crossing where the plaintiff was injured, we cannot say that it was an unreasonable exercise of the police power of the city for the protection and safety of its own citizens and the public generally, even If the jury had believed that all the hypothetical statements set out in the instruction were true. Before such an ordi-nance could be held unreasonable, and therefore void, a very strong cast would have to be made. It was not done in this case, and the circuit court did not err in refusing to give the instruction.

The next assignment of error is to the action of the court in giving certain instructions asked for by the plaintiff.

Instructions numbered 1 and 2 were as follows:

"(1) The court instructs the jury that the city council of Alexandria had full power and authority to enact and adopt the ordinances mentioned and set forth in the third and fourth counts of the plaintiff's declaration, and which have been read in evidence to the jury.

"(2) The court further instructs the jury that the ordinances of the city of Alexandria require that no engine shall be drawn or propelled by the defendant company over its railway tracks on Payette street within the corporation limits of the city of Alexandria at a rate of speed exceeding five miles per hour, and that a bell not less than thirty pounds in weight be attached to each locomotive, and be rung during the whole time such locomotive shall be in motion within the said limits. And if the jury believe from the evidence that the plaintiff was injured, and that such injury was the result of a failure on the part of the defendant company, or its agents and servants, to comply with any one or more of said requirements of said ordinances mentioned In the declaration, they must find for the plaintiff, unless they jury further believe that the plaintiff's injury was caused by his own fault in failing to use the precaution of a person of ordinary prudence and care in looking out for and listening for approaching trains."

The objections taken to these instructions are that the ordinance referred to in the first is unreasonable with reference to the locality where the accident occurred, and was, therefore, void; and that the second is subject to the same objection, and to the further objection that it declares "in terms what the ordinance was, instead of leaving that instrument to the jury, who were the proper judges of Its provisions as matter of evidence."

The question of whether the ordinance was reasonable or not has already been disposed of in passing on the defendant's Instruction numbered 19.

The other objection—that the jury, and not the court, should have construed the city ordinance—is without merit. As a general rule, the construction of all written documents in evidence belong to the court exclusively, and there was nothing in this case to take it out of the general rule. 1 Tayl. Ev. § 43 et seq.; Insurance Co. v. Pollard (decided at November term, 1896, of the court) 26 S. E. 421, 423; Johnson's Ex'x v. Jennings' Adm'r, 10 Grat 2, 11; 4 Minor, Inst. (3d Ed.) § 1086.

Instruction No. 3 was that "the jury are further instructed by the court that the plaintiff had the lawful right to cross Payette street at any part thereof."

This instruction defendant's counsel admits "is true as an abstract...