Yellow Cab Co. v. Eden

• Decision Date: 13 October 1941
• Docket Number: Record No. 2373.
• Citation: Yellow Cab Co. v. Eden, 178 Va. 325, 16 S.E.2d 625 (1941)
• Parties: YELLOW CAB COMPANY, INC. v. ISADORE VIRGINIA EDEN.
• Court: Virginia Supreme Court

Page 325

178 Va. 325

YELLOW CAB COMPANY, INC. v.ISADORE VIRGINIA EDEN.

Record No. 2373.

Supreme Court of Virginia, Richmond.

October 13, 1941.

Present, All the Justices.

1.AUTOMOBILES — Negligence — Materiality and Relevancy of Evidence — Case at Bar.— The instant case was an action by a passenger in a taxicab to recover for personal injuries arising from a collision between the taxicab and the automobile of another.The trial court refused to require the driver of the other automobile, called as an adverse witness by defendant, to answer certain questions as to whether he had been drinking the night before the accident and as to whether he 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 such driver on a hit and run charge arising out of such accident.The record showed that if the witness 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 was intoxicated on the morning of the accident, and he had previously testified that he had had nothing to drink on the morning in question.There was no evidence offered in contradiction of witness' testimony to the above effect.

Held: That the answers to the above questions had no bearing on the negligence of the driver of the taxicab and they were, therefore, immaterial and irrelevant.

2.AUTOMOBILES — Negligence — Prior Inconsistent Statements of Adverse Witness Admissible for Contradiction — Case at Bar.— The instant case was an action by a passenger in a taxicab to recover for personal injuries arising from a collision between the taxicab and the automobile of another.The defendant produced several witnesses who testified in contradiction of the driver of the other automobile who was called as an adverse witness and whose testimony was that at the time of the accident 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 saw another can approaching, and these witnesses stated that some time after the accident the adverse witness had said 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.This latter statement was denied by the adverse witness.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.

Held: That the ruling of the court was in accord with Section 6215 of the Code of 1936 relating to prior inconsistent statements.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 the adverse witness was also guilty of negligence.Conceding that the adverse witness 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.

3.AUTOMOBILES — Negligence — Declaration Not Part of Res Gestae — Case at Bar.— The instant case was an action by a passenger in a taxicab to recover for personal injuries arising from a collision between the taxicab and the automobile of another.The defendant produced several witnesses who testified in contradiction of the driver of the other automobile who was called as an adverse witness and whose testimony was that at the time of the accident 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 saw another car approaching, and these witnesses stated that some time after the accident the adverse witness had said 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.This latter statement was denied by the adverse witness.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.

Held: The declaration of the adverse witness was not a part of the res gestae and whether or not the declaration was made, therefore, simply related to the veracity of the witness, not the truth of the matter stated.If made, it was merely an extrajudicial statement and was not binding upon the plaintiff.

4.DECLARATIONS AND ADMISSIONS — Declarations against Interest — Admissible When Declarant Unavailable as Witness.— 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.

5.DECLARATIONS AND ADMISSIONS — Declarations against Interest — Admissibility Where Parties Concurrently Liable.— If parties are sued as concurrently liable, or one is sued as the actual tort feasor and the other under the respondeat superior rule, an admission by one cannot be used against the other.So, if an admission by one, or evidence admissible only as to one, is offered, the court should, by proper instruction, limit its effect to the question of the liability of the one against whom it is competent.

6.AUTOMOBILES — Negligence — Passenger Ordinarily Has No Duty to Direct Driver — Case at Bar.— In the instant case, an action to recover for damages received by plaintiff, a passenger in defendant's taxicab, plaintiff testified that the driver of the cab drove rather fast on one street but slowed down his speed when he entered another street upon which he traveled for one block before colliding with another car at an intersection.Defendant contended that the statement that the driver drove too fast on one street was evidence of contributory negligence of the plaintiff but from no standpoint was a rapid rate of speed responsible for the collision.

Held: That it was not the duty of the plaintiff to direct and control the driver nor to keep a lookout for approaching cars.

7.AUTOMOBILES — Negligence - Passenger Should Warn Driver Where Danger Observed of Which Driver Is Unconscious.— Ordinarily passengers have no duty to direct and control the driver unless it is obvious that the driver is taking no precautions for their safety, and it is only when the passenger observes a dangerous condition of which the driver is apparently unconscious or oblivious that it becomes the duty of the passenger to warn the driver, as it is the driver's duty to employ every reasonable and practical means to preserve the life and limbs of his passenger.

8.COMMON CARRIERS — Carriers of Passenger — Duty as to Care and Safety.— Where plaintiff is a passenger in a vehicle belonging to defendant who is a common carrier, defendant owes the plaintiff the utmost care, diligence and foresight in the operation of the vehicle.

9.INSTRUCTIONS — Office of Instructions — Enlightenment of Jury.— The office of instructions is to define for the jury, and to direct their attention to, the legal principles which apply to and govern the facts which the evidence tends to establish.They are to enlighten the jury and not to confuse their minds.It is unnecessary to multiply them beyond the point of fairly submitting the law upon all the points involved.Repetitions legal language and contradictions are to be avoided.

10.AUTOMOBILES — Negligence — Instruction as to Contributory Negligence Not Necessary Where Evidence Discloses No Such Negligence — Case at Bar.— In the instant case, an action to recover for damages received by a passenger in a taxicab in a collision with another car, objection was made to an instruction because it failed to recite that contributory negligence on the part of the plaintiff would bar her recovery, but the evidence did not disclose contributory negligence on the part of the plaintiff and another instruction favored defendant by presenting the question of contributory negligence to the jury.

Held: That there was no merit in the objection.

11.COMMON CARRIERS — Carriers of Passengers — Instruction Should Define Degree of Care Required — Case at Bar.— The instant case was an action by a passenger in a taxicab to recover for personal injuries arising from a collision between the taxicab and an automobile of another.Defendant complained of the refusal of the court to give an instruction, but such instruction failed to define the degree of care required of the defendant.

Held: No error.

12.COMMON CARRIERS — Carriers of Passengers — Instruction Should Consider Circumstances Attending Collision — Case at Bar.— The instant case was an action by a passenger in a taxicab to recover for personal injuries arising from a collision between the taxicab and the automobile of another.Defendant complained of the refusal of the trial court to give an instruction but such instruction failed to take into consideration the circumstances attending the collision.

Held: No error.

13.COMMON CARRIERS — Carriers of Passengers — Instructions Covered by Other Instructions Need Not Be Given — Case at Bar.— The instant case was an action by a passenger in a taxicab to recover for personal injuries arising from a collision between the taxicab and the automobile of another.Defendant complained of the refusal of the trial court to give certain requested instructions but such instructions were embraced in other instructions given by the court.

Held: No error.

14.COMMON CARRIERS — Carriers of Passengers — Instruction Should Cover Evidence — Case at Bar.— The instant case was an action by a passenger in a taxicab to recover for personal injuries arising from a collision between the taxicab and the automobile of another.Defendant complained of the refusal of the...