Washington & O. D. Ry.,v.,ward's Adm'r.

• Decision Date: 08 June 1916
• Citation: 89 S.E. 140
• Court: Virginia Supreme Court
• Parties: WASHINGTON & O. D. RY. v . WARD'S ADM'R.

89 S.E. 140

(119 Va. 334)

WASHINGTON & O. D. RY.v .WARD'S ADM'R.

Supreme Court of Appeals of Virginia.

June 8, 1916.

Error to Circuit Court, Alexandria County.

Action by John M. Ward's administrator against the Washington & Old Dominion Railway. Judgment for plaintiff, and defendant brings error. Judgment affirmed.

C. E. Nicol, of Alexandria, and W. J. Lambert and Geo. B. Eraser, both of Washington, D. C, for plaintiff in error.

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

KELLY, J. John M. Ward, a boy 6 years and 3 months old, was killed by an electric car owned and operated by the Washington & Old Dominion Railway. His administrator thereupon brought this action, and recovered the judgment, to which this writ of error was awarded. The parties will hereinafter be designated as plaintiff and defendant, respectively, in accordance with their status in the lower court. We will dispose of the assignments of error in the order in which they were presented to us.

1. A demurrer to the declaration was overruled, and this action of the trial court, although assigned as error, was plainly right. The declaration contained two counts. The first count stated a good cause of action against the defendant company, treating the boy as a naked trespasser, and the second an equally good one upon the theory that he was a licensee. The duty which a railroad company owes to trespassers and licensees has been frequently declared in the decisions of this court, some of which will be hereinafter referred to, and we deem it unnecessary to do more in this connection than to say that the declaration amply charged a breach of such duty.

2. The court ordered that the witnesses be excluded from the courtroom during the trial. The witness Johnson was present when this order was made, but he had not been summoned, and did not know he was to be called as a witness. Counsel for plaintiff had not talked to him about the case, and did not know he was in court until the moment before he was called to the stand. He was third in order of some 30 or more witnesses. The defendant objected to his testimony, claiming that be was rendered incompetent by being in court under the circumstances detailed, but this contention is not sound. See Hey's Case, 32 Grat. (73 Va.) 946, 948, 34 Am. Rep. 799; Brown's Case, 90 Va. 672, 675, 19 S. E. 447; Jackson's Case, 96 Va. 107, 110, 30 S. E. 452; 1 Greenleaf, §§ 431, 432.

3. The witness H. C. Beam was allowed, over defendant's objection, to testify as to the distance within which be could stop car No. 4 of defendant's line. The objection was: First, that he was not shown to be an expert as to the space within which he could stop the car at the place of the accident; and, second, that car No. 4 was not shown to have been the car which caused the decedent's death. Neither ground of objection was good. It appeared that Beam had been engaged off and on for some 15 years in and about the operation of electric cars, had worked for the defendant for a period of 13 months, part of that time as motorman, had frequently operated car No. 4, and was familiar with the track and other conditions at the place of the accident. There was also evidence tending to show, and upon which the jury might have found, that car No. 4 was the car which struck and killed the boy. The distance within which the car could be stopped was a material question, and the court was clearly right in allowing the testimony of this witness to go to the jury.

4. The witness Burrell was permitted to testify as to the proper position of a motor-man on car No. 4. The defendant here again objected, on the ground that the car in question had not been shown to have caused the injury. For the reasons last above stated, this assignment of error must be overruled.

5. Louise Jones, a witness for the plaintiff, was asked to "tell the jury whether or not there was any motorman in the front of that car, where the motorman usually stands." Her reply was: "If he was, I did not see him. I guess he was there, but he must have been looking another way." The defendant objected to this question and answer and the action of the court in overruling the objection is the basis of the fifth as-signment of error. The bill of exceptions taken to save this point shows absolutely nothing of the evidence except the question and answer, and is fatally defective under the ruling of this court in Jacobs v. Warthen, 115 Va. 571, 80 S. E. 113, but we have nevertheless considered it in the light of the whole of the testimony of the witness Louise Jones (appearing elsewhere in the record), and we are fully satisfied there was no error in overruling the objection.

6. During the course of the cross-examination of the defendant's witness M. W. Bowen counsel for plaintiff undertook to question him about some supposed adverse comment made by him upon the verdict of the coroner's jury. The avowed purpose of the inquiry was to show bias on the part of the witness. Counsel for defendant objected, making the comment that "the vice of a great deal that has happened is that Mr. Mackey is getting before the jury what he knows is improper, " to which comment counsel for plaintiff replied: "I am going to show the bias of this witness, not when the jury is locked in the room out of sight, but when the jury hears the evidence." Counsel for defendant immediately excepted to this latter remark, and further insisted that any question as to the coroner's jury should be asked out of the presence of the jury. After some further controversy the witness was asked by plaintiff's counsel whether he had not reproached his brother for signing the verdict of the coroner's jury, to which he replied: "I did not." The court then stated that it would rule out everything that had occurred in connection with this part of the examination.

The suggestion that the witness had shown a bias against the plaintiff by a disapproval of the verdict of the coroner's jury could, of course, only mean that the inquest had resulted adversely to the railway company; and the defendant's counsel contend that the action of the court in excluding what had occurred was not sufficient to overcome the alleged prejudicial impression made upon the minds of the jury by the reference to the inquest.

There are cases in which the error of admitting improper testimony, or the effect of mere statements of counsel, cannot be adequately overcome by a subsequent direction to the jury to disregard the objectionable evidence or statements. Such cases, however, are exceptions, and we do not think this is one of them. In the multitude of questions arising in jury trials, and in the zeal and earnestness of counsel, however well intended, it is practically impossible for the court to keep the case on trial at all times entirely free from minor irregularities and mistakes; and the course taken by the trial judge in the present instance is in accord with a common and widely approved practice. A judgment ought not to be reversed for the admission of evidence or for a statement of counsel which the court afterwards directs the jury to disregard, unless there is a manifest probability that the evidence or statement has been prejudicial to the adverse party. A different rule would result in fixing an intolerable handicap upon the nisi prius courts. In this case the judge expressly told the jury that the verdict at the coroner's inquest had nothing whatever to do with the questions before them, and he furthermore ruled out the entire examination and discussion concerning it. If, therefore, it be...