Yellow Cab Co. Inc v. Eden

• Decision Date: 13 October 1941
• Citation: Yellow Cab Co. Inc v. Eden, 178 Va. 325, 16 S.E.2d 625 (1941)
• Parties: YELLOW CAB CO., Inc. v. EDEN.
• Court: Virginia Supreme Court

16 S.E.2d 625

YELLOW CAB CO., Inc.

v.EDEN.

Supreme Court of Appeals of Virginia.

Oct. 13, 1941.

BROWNING, J., dissenting.

Error to Circuit Court, Washington County; Walter H. Robertson, Judge.

Action by Mrs. Isadore Virginia Eden against the Yellow Cab Company, Incorporated, for injuries sustained in a collision between a taxicab and an automobile.To review a judgment for the plaintiff, the defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, E G G L E S T O N, and SPRATLEY, JJ.

T. L. Hutton, of Abingdon, and George M. Warren and H. E. Widener, both of Bristol, for plaintiff in error.

Thomas C. Phillips and Roby C. Thompson, both of Abingdon, for defendant in error.

SPRATLEY, Justice.

Mrs. Isadore Virginia Eden instituted this action against the Yellow Cab Company, Inc., to recover compensation for personal injuries arising from a collision between one of the defendant's taxicabs, in which she was a passenger, and the automobile of another.The Yellow Cab Company, Inc., hereinafter referred to as the defendant, pleaded the general issue and filed its grounds of defense denying that it was guilty of any negligenceproximately contributing to the injuries of the plaintiff.It asserted that the collision was brought about by the negligence of an independent agency over which it had no control.

A verdict was rendered by the jury for the plaintiff in the sum of $2,500, upon which the trial court entered final judgment.

The defendant seeks to have the judgment reversed, contending that the trial court erred in excluding evidence offered by it, in limiting the effect of certain testimony, in granting and refusing certain instructions, and in refusing to set aside the verdict as contrary to the law and the evidence.

The evidence, stated from the strong position occupied by Mrs. Eden by virtue of the verdict and judgment in her favor, may be summarized as follows:

On June 19, 1939, Mrs. Eden, sixty-two years of age, called one of the defendant's taxicabs to come to her home in the west end of the town of Abingdon, Virginia, and carry her to a hospital located about one and one-half miles distant, in the eastern part of that town.It was raining and the streets were wet and slippery.

The defendant maintains and operates cabs for hire.Its cab, a sedan, operated by its driver, Akers Roark, called for Mrs. Eden at her home about eleven a.m. of that day, took her up as a passenger and proceeded to the hospital.He drove east down Main street to the Court House and then turned left on Court street.He travelled north on this street for one block, and as he was crossing its intersection with Valley street, which it intersects, at right angles, the taxicab collided with a Chevrolet coupe travelling west on Valley street, and driven by Isaiah Perkins.Court street is fifty-four feet wide with a paved surface of twenty-four feet.Valley street is thirty-six feet wide.The coupe came into collision with the right rear end of the taxicab when all but the last three feet of its rear had passed through the intersection.

An ordinance of the town of Abingdon required all motor vehicles to come to a stop within fifteen feet of Valley street before entering therein.As a safety and precautionary measure, a stop sign had been accordingly placed on Court street about fifteen feet from its intersection with Valley street.

Mrs. Eden testified that Roark drove rather fast on Main street; that he slowed down somewhat on entering Court street; and that he did not bring the cab to a stop before entering Valley street.She did not see the Chevrolet coupe and was able to give few other particulars because the collision happened very quickly while she was looking at the clouds to see the extent of the rain.

Another witness, David Bird, a colored man, said that he was looking at the taxicab as it approached and entered Valley street, and that it made no stop before entering that street.

Isaiah Perkins, the driver of the coupe, called as an adverse witness, said that he saw the taxicab enter Valley street when he was "pretty close to it, * * * probably one hundred feet" away; that he was travelling between twenty and twenty-five miles per hour and was "too close to stop as slick as the street was;" that he did not put his brakes on because he knew his car would slide if they were put on tight enough to lock the wheels; and that he did not turn to the left because he thought he saw a car coming towards him on Valley street.

He was asked by counsel for the defendant if he had not on July 9, 1939, in the presence of several persons, made the statement that he could have stopped his car, but that he tried to knock the cab out of the way and the next time one got in his way he would knock it out, if he had to get a truck to do so.He positively denied that he had ever made any such statement.

The driver of the taxicab testified that he drove on Court street at ten to twelve miles per hour; that he called out to a friend as he passed him on that street; that he stopped before entering Valley street; that he saw the car driven by Perkins coming from the east about two hundred yards from the intersection; that he could not say at what rate of speed it was being driven, but it "was making a pretty fast rate of speed;" that he did not wait after stopping because said he, "I thought I could make it;" and that he crossed Valley street in low gear at seven miles per hour, never looking again to see where Perkins' car was until it was eight or ten feet from the taxicab.Three times he said: "I never paid any mind to it as to how he was running.It looked like I could make it."He admitted that the consequencesshowed that he was mistaken as to the speed of the coupe.

The friend to whom Roark called as he passed along Court street said that the cab pulled up to the stop sign and stopped before entering Valley street.

The taxicab was knocked completely around so that it faced south.The coupe stopped on Valley street within its length.

The jury viewed the. scene of the accident.

Mrs. Eden, who was on the back seat of the taxicab, was severely injured and immediately taken to the hospital where she was a patient until July 15th.She suffered an impacted fracture of the collar bone, that is, the bone was broken and the fragments were driven into each other.When the fracture healed the collar bone was about one-half inch shorter than before.This resulted in certain deformities of the shoulder and about a fifty per cent limitation of the ordinary use of her right arm and hand.She had other bruises about the face and head causing her much pain and discomfort.She has since been unable to give full attention to her personal care and to her household duties.

The trial court refused to require the witness, Perkins, to answer certain questions as to whether he had been drinking the night before the accident and was under the influence of some intoxicant at the time of the accident.It also refused to allow the town sergeant to testify that a felony warrant had been issued against Perkins on a hit and run charge arising out of the collision.

The record shows that if Perkins had been allowed to answer, he would have admitted that he had drunk four or five cans of beer the night before; but would have denied that he was drinking or intoxicated on the morning of the accident.He had previously testified that he had nothing to drink on the morning in question.Nor was there any evidence offered in contradiction of Perkins' testimony to the above effect.The answers to the above questions had no bearing on the negligence of Roark, the cab driver, and they were, therefore, immaterial and irrelevant.

The deposition of Homer Sapp, which dealt solely with the condition of a passenger of Perkins' car, was likewise immaterial.

The defendant produced several witnesses, who testified before the jury in contradiction of the adverse witness, Perkins, that the latter, sometime in July or September, 1939, made a statement while he was drinking and "trying to raise a racket with Roark, " that he did not try to stop his car and the next time a cab got in his way he would knock it out, if he had to get a truck to do so.The court, over the protest of the defendant, instructed the jury that they could consider the alleged inconsistent statements only for the purpose of contradicting the witness, Perkins.The ruling of the court was in accord with Virginia Code, 1936, section 6215.

The test of the plaintiff's right to recover was whether the defendant was guilty of such primary or concurring negligence as brought about the accident.It was not whether Perkins was also guilty of negligence.Conceding that Perkins was guilty of gross negligence, that did not relieve the defendant of its own negligence, if such negligence was a proximate cause of the accident.

The alleged declaration against the interest of Perkins was sought to be used as a declaration against the interest of Mrs. Eden.Perkins was not a party to the action nor in privity with the plaintiff.He was not an agent or a servant.The declaration was not a part of the res gestae.Perkins denied that he made the statement.He also controverted the truth of its allegations.No one testified that the circumstances stated by the alleged declaration were true.Whether or not the declaration was made, therefore, simply related to the veracity of Perkins, not the truth of the matter stated.If made, it was merely an extrajudicial statement and was not binding upon the plaintiff.

As a general rule, a declaration against the interest of the person making it, notwithstanding its hearsay character, is admissible only if the declaration is relevant and the declarant has died, become insane, or for some other reason is not available as a witness.20 Am.Jur. section 556;2 Wigmore on Evidence, 1904 Ed. section 1456.There are no circumstances here involving the exceptions to the general rule.

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