Wash.-va. Ry. Co v. Bouknight

• Decision Date: 13 June 1912
• Citation: 75 S.E. 1032,113 Va. 696
• Parties: WASHINGTON-VIRGINIA RY. CO. v. BOUKNIGHT.
• Court: Virginia Supreme Court

75 S.E. 1032

(113 Va. 696)

WASHINGTON-VIRGINIA RY. CO.

v.BOUKNIGHT.

Supreme Court of Appeals of Virginia.

June 13, 1912.

Rehearing Denied. Sept. 21, 1912.

1. Pleading (§ 35^*)— Surplusage.

In an action against a carrier for personal injuries, a count which alleged that plaintiff was a passenger upon defendant's car, that the car was derailed by the defendant's negligence, and that plaintiff was injured, was supplemented by a bill of particulars alleging that in such count the plaintiff relied upon the presumption of negligence arising from the derailment of the defendant's car, the reason for which was not known to plaintiff. Held, that the language alleging negligence on the part of the defendant in running its car upon which plaintiff was injured might be regarded as surplusage, and that the count without such language was sufficient to make out a case of presumptive negligence.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 76-80; Dec. Dig. § 35.*]

2. Pleading (§§ 193, 313*)—Motion tor Bill op Particulars.

Where defendant desires a more particular statement of the grounds of complaint, his remedy is by motion for a bill of particulars, and not by demurrer.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 425. 428-435, 437-143, 949; Dec. Dig. §§ 193, 313.*]

3. Carriers (§ 316*)—Action for Injuries-Negligence—Res Ipsa Loquitur.

. Where the relation of passenger and carrier exists, a derailment resulting in an injury to a passenger raises a presumption of negligence on the part of the carrier.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1261; Dec. Dig. § 316.*]

4. Negligence (§ 121*)—Res Ipsa Loquitur.

Plaintiff by alleging acts of affirmative negligence did not thereby waive or lose the benefit of the presumption of negligence arising from the nature of the act alleged.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. § 121.*]

5. Carriers (S 316*) — Presumptions and Burden of Proof—Res Ipsa Loquitur.

In an action against a carrier for personal injuries received by the derailment of the car in which plaintiff was riding, the plaintiff makes out a prima facie case by proving the happening of the accident and his injury, and thereby casts upon the defendant the burden of rebuttal and of explaining the circumstances of the accident so as to relieve itself from liability.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 1285-1294; Dec. Dig. § 316.*]

6. Appeal and-Error (§ 1040*)—Review-Harmless Error—Ruling on Demurrer.

The overruling of demurrers to the several counts of a declaration of a complaint is not prejudicial to defendant, where the court, at the close of the evidence and on motion of the plaintiff, strikes out such counts.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]

7. Pleading (§ 328*)—Bill of Particulars —New Cause of Action.

Where plaintiff alleged facts and circumstances out of which the presumption of defendant's negligence arose as a matter of law, the allowance of a bill of particulars which alleged that plaintiff relied upon the presumption of negligence which the law created where the cause of the accident was unknown to the plaintiff was not objectionable as tending to make a new case shifting the burden of proof.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 984; Dec. Dig. § 328.*]

8. Appeal and Error (§ 971*)—Review-Discretion of Trial Court—Examination of Witnesses.

The trial court has much latitude in the matter of recalling witnesses; and its action will not be reversed by the appellate court, except for palpable error.

[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. §§ 3S52-3857; Dec. Dig. § 971.*]

9. Appeal and Error (§ 1047*)—Review-Harmless Error—Order of Admission of Evidence.

In an action against a carrier for personal injuries, where plaintiff alleged both affirmative and presumptive negligence, and where defendant introduced evidence to show that its machinery was in good order, its track in proper condition, and its cars properly inspected, the admission on plaintiff's case in chief of evidence to sustain the issue of affirmative negligence, which after the case was closed, and his counts upon affirmative negligence had been stricken out on his own motion, would have been admissible in rebuttal of the defendant's evidence as to the condition of its machinery, etc., was not prejudicial.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4132, 4133, 4146-4152; Dec. Dig. § 1047.*]

10. Evidence (§ 550^2-*)—Action for Injuries —Issues, Proof, and Variance.

Plaintiff, in an action against a carrier for personal injuries, showed the construction of the interior of the car and aisle, the seats on each side, the seat in which she was sitting, and that, by a derailment, she was thrown violently forward from her seat a distance of at least ten feet against the front door of the car, her head going down near the bottom of the door, and her attending physician stated that plaintiff has sustained an impacted fracture of the hip, to cause which a blow would have to be directed against the hip bone, or plaintiff would have had to fail on the hip. Held that, although there was some variance in the evidence, the physician's testimony was admissible, since the jury might have inferred therefrom that plaintiff was thrown against the seat so as to strike the hip.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2366, 2367; Dec. Dig. § 550.*]

11. Carriers (§ 316*)—Action for Injuries —Burden of Proof—Res Ipsa Loquitur.

Where an injury to a passenger happens as the result of a derailment, the burden of proof is upon the carrier to establish that there was no negligence whatever and that the injury was caused by inevitable casualty, or some cause which human care and foresight could not prevent, so that it was without fault.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 1285-1204; Dec. Dig. § 316.*]

12. Carriers (§ 320*)—Action for Injuries —Question for Jury—Negligence.

Where plaintiff, in an action against a carrier for personal injuries, makes a prima facie case of negligence, the question whether defendant had shown by a preponderance of the evidence that it was free from negligence was for the jury.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1118, 1126. 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.*]

13. Trial (§ 260*)—Refusal of Instructions—Instructions Already Given.

Where instructions given have fully and fairly submitted every phase of a case presented by the evidence, the refusal of requested instructions is not error.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]

14. Damages (§ 132*)—Excessive Damages —Personal Injuries—Permanent Injury to Hip.

• A verdict of $7,500 on evidence that plaintiff, a passenger, about 30 years of age, in the possession of all her faculties, earning $900 per annum as a government clerk, suffered an impacted fracture of the hip, causing her continuous and intense pain and a permanent injury, so that she would always limp, and the shortening of the limb would increase as time went on, was not excessive.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dee. Dig. § 132.*]

Appeal from Circuit Court, Alexandria County.

Action by C. G. Bouknight against the Washington-Virginia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Moore, Barbour & Keith, of Fairfax, and J. R. & H. B. Caton, of Alexandria, for plaintiff in error.

Moncure, Wampler & Gloth, of Rossiyn, and Thos. S. Martin, of Scottsville, for defendant in error.

CARDWELL, J. The Washington-Virginia Railway Company owns and operates a line of electric cars from Washington, D. C, to certain terminal points in the state of Virginia, and this action was instituted by the plaintiff in the court below, defendant in error here, against the said railway company to recover damages for personal injuries alleged to have resulted from the negligence of the defendant company. To the final judgment of the circuit court in favor of the plaintiff for $7,500 and costs, the defendant company brings error.

Seventeen bills of exceptions have been taken and made part of the record, and are made the basis of eleven assignments of error in the trial court's rulings, which are relied on for a reversal of said judgment by this court; but, in the view we take of the case, it is not necessary to consider these assignments seriatim or at length.

The leading facts of the case are that the plaintiff on the 9th day of January, 1911, boarded a car of the defendant at East Falls Church, in Alexandria county, Va., paying her fare to Washington, D. G, where she desired to go; that, when about two miles from the city of Washington, the car upon which the plaintiff was riding was derailed, and she was thrown violently from her seat forward for some distance to the floor, and severely injured.

The declaration contains eight counts, to which and to each count thereof the defendant demurred and filed in writing five grounds for its demurrer, but these grounds, in fact, present but two questions: First, as to the sufficiency of the eighth count of the declaration; and, second, whether or not there can be joined in the same declaration counts charging affirmative negligence and counts relying upon the presumption of negligence arising by reason of the facts therein alleged.

The eighth count in the declaration alleges that the plaintiff was a passenger upon the defendant's car; that the car was derailed and by reason of the derailment the plaintiff was injured. The court, upon motion of the defendant, required the plaintiff to file a bill of particulars to this count, which she did in these words: "That in said count the plaintiff relies upon the presumption of negligence arising from the derailment of the...