Williams v. Lynchburg Traction & Light Co

• Decision Date: 11 June 1925
• Citation: 128 S.E. 732
• Court: Virginia Supreme Court
• Parties: WILLIAMS. v. LYNCHBURG TRACTION & LIGHT CO.

128 S.E. 732

WILLIAMS.

v.LYNCHBURG TRACTION & LIGHT CO.

Supreme Court of Appeals of Virginia.

June 11, 1925.

Error to Circuit Court of City of Lynchburg.

Action by C. R. Williams, administrator of Augusta B. Williams, deceased, against the Lynchburg Traction & Light Company. Judgment for defendant, and plaintiff brings error. Reversed for new trial.

Volney E. Howard and S. Du Val Martin, both of Lynchburg, for plaintiff in error.

S. V. Kemp, of Lynchburg, for defendant m error.

PRENTIS, P. This action grows out of a collision between a street car of the defendant company with a Ford automobile (converted into a truck), which was crossing its track. The plaintiff's intestate was a child less than 4 years of age. The administrator is her brother. Her father, John L. Williams, was driving the car, and came through an alleyway located at right angles to the car track. The single track was on the west side of McKinley avenue, a county road, and it was necessary for the driver of the automobile to cross the rails in order to reach the driveway of the street generally used by the public.

The briefs contain elaborate discussions of the evidence and of many phases of the law of negligence, which we shall not attempt to follow. There are some rules of law which are settled, and these do not require constant repetition by the courts. The problem in most cases is to apply the law to the facts, and, as the evidence is generally conflicting, this case like most only presents issues of fact which must be submitted to a jury. In this case the jury found a verdict for the defendant, which, under the testimony shown in the record, would be held conclusive here if the jury had been properly instructed.

Many errors are assigned. Most of thorn may be summarized by the claim that the case was tried upon an erroneous theory; that erroneous theory being that the plaintiff could not recover if the negligence of her father, the driver of the automobile, proximately contributed to her death. The learned counsel for the defendant company, however, positively denies this claim, and freely admits here that the child herself could not be guilty of contributory negligence, and that such negligence of her father cannot be imputed to her so as wholly to defeat a recovery, but only to deny to him any share of it.

Viewing the case from this angle, it can hardly be doubted that instruction J, which was given for the defendant, however correct in the abstract, is erroneous as applicable to the conflicting evidence in this case. It reads thus:

"The court instructs the jury that, although street cars and automobiles have equal rights to use the highway, it is nevertheless, as a matter of law, negligence for the driver of an automobile, after knowing of the approach of a street car, to drive or attempt to drive across street car tracks, in front of, and in dangerous proximity to, such approaching car. It is also negligence, as a matter of law, for the driver of an automobile, who sees a street car approaching, and who does not know the rate of speed thereof, to proceed to drive across the car track without continuing to observe such approaching street car, and that, if the driver of an automobile sees an approaching street car, but does not know its speed, and, after so seeing it, continues upon his course across the car tracks without assuring and reassuring himself that he can cross in safety before the street car reaches the point of crossing, this constitutes negligence, and, in the absence of proof that the street car motorman could, after such negligent act, if any, on the part of such automobile driver, have averted the collision, there can be no recovery on the part of any occupant of such automobile."

It is erroneous, because (a) it is inconsistent with instruction 4, given on behalf of the plaintiff, which is hereafter quoted; (b) fairly construed, it inferentially imputes the negligence of the driver of the automobile to the infant passenger therein, and denies a recovery on that ground, unless entitled under the last clear chance rule, just as if she had been an adult, and the negligence of her father could have been so imputed to her; and (c) directs a verdict for the defendant on a partial view of the evidence.

In this court it is earnestly contended for the company that the evidence clearly shows that the sole proximate cause of the collision was the negligence of her father; that there was no negligence attributable to the company; that there could have been no other proper verdict; and hence that the judgment should be affirmed. On the other hand, for the plaintiff it is contended that the testimony shows that the proximate cause of the injury was the negligence of the company in failing to keep a proper outlook, in failing to keep the car under control, and in operating the street car at an excessive rate of speed, which negligence it is claimed is so demonstrated that it should be found by this court as a matter of law. It is argued therefrom that we should here reverse the judgment, declare the liability of the defendant, and remand the case...