138 Va. 310 | Va. | 1924
after making the foregoing statement, delivered the following opinion of the court:
The questions presented for decision by the assignments of error will be disposed of in their order, as stated below.
1. Was the evidence sufficient to support the verdict in finding, as it did in effect, that t.he defendant, through its motorman, did not have a last clear chance to avoid the accident, or lessen the injury, after it ought to have been apparent to the motorman, had he exer
The question must be answered in the affirmative.
The circumstances, as we must deduce them from the evidence after the verdict in favor of the defendant, are stated above.
As appears from the record and from the argument it is practically a concession in the case, on the part of the plaintiff, that the plaintiff was not entitled to recover, unless the last clear chance doctrine is applicable. It is, therefore, unnecessary to consider whether the defendant is chargeable with primary negligence, in view of our conclusion, just stated, that the jury were warranted in finding that the doctrine mentioned is not applicable. And certainly the jury were warranted in finding that the negligence of the plaintiff’s intestate was such as to bar recovery, unless the right to recovery was saved to the plaintiff by the last clear chance doctrine. Upon the subject of the nonapplication of that doctrine the following only need be said:
The rules of law governing the subject and the authorities enunciating them have been so frequently and so recently reviewed by this court that no useful purpose would be served by again reviewing them in detail. See among such cases, Nor.-So. R. Co. v. Whitehead, 121 Va. 139, 92 S. E. 916; Southern R. R. Co. v. Bailey, 110 Va. 833, 67 S. E. 365, 27 L. R. A. (N. S.) 379; Kabler’s Adm’r v. Southern R. R. Co., 121 Va. 90, 92 S. E. 815; Boaring Fork R. R. Co. v. Ledford’s Adm’r,
It is afgued in behalf of the plaintiff that the motorman himself made certain statements in Ms testimony which, if true, rendered other statements relied on for the defendant untrue or unreliable. But such conflicts, like conflicts in the testimony of witnesses for the respective parties, or in that of different witnesses for the same party, were for the jury, and the verdict concludes them all in favor of the defendant. It is witMn the province of the jury to sift the truth out of the whole evidence, however, or wherever conflicting. And as the jury in the case in judgment found to be true the version of such testimony wMeh is most favorable to the defendant, the court, as it is settled, must so find.
It is also argued for the plaintiff that the circumstance that Mrs. Ashby paid no apparent attention t-o the repeated sounding of the gong should have made the motorman realize that she was unconscious of the approacMng street car, and Director General v. Blue, 134 Va. 366, 109 S. E. 482, 114 S. E. 557, is strongly relied on to support tMs position. But in the Blue Case the fact was that the injured plaintiff was walking more obliquely toward the railway track, with Ms back more toward the approacMng train, then was the back of Mrs. Ashby towards the approacMng car in the instant case, and the attention of Blue, as was apparent, was concentrated upon looking to the north — away from the train approacMng from the south — to see if any train was coming from the north. Blue was not merely looking normally down directly in front of him as he walked, as was Mrs. Ashby; and there are other obviously pertinent circumstances to sustain the verdict for the de
And, too, in the other cases, relied on for the plaintiff, there were similar distinguishing features. In Nor.-Sou. R. Co. v. Whitehead, 121 Va. 139, 141, 92 S. E. 916, 917, as said in the statement of facts, there was “the manifest evidence of the preoccupation of the plaintiff and unconsciousness of his imminent peril was in plain view of the motorman of the approaching train”; In Roaring Fork R. R. Co. v. Ledford's Adm’r, 126 Va. 97, 101 S. E. 141, 871, the evidence showed that the plaintiff’s intestate was not looking normally in front of him as he walked, but had his head continuously fixed in looking to one side, toward another operation, manifestly that his attention was especially concentrated thereon, and there was, besides, the noise of the mill which drowned the noise of the approaching train and interfered with . the normal result of the use of his sense of hearing. Of the other cases cited for the plaintiff, it is enough to say that the- same principle was involved in the decision of all of them.
2. Was instruction No. 7, given for the defendant, reversibly erroneous?
The question must be answered in the negative.
This not being a case of absence of explanation by the defendant, and in which the accident was attributable to an unknown cause, but one in which the accident if due to any cause for which the defendant was liable, was a known cause, namely, the negligence of the motorman in the operation of the street car, the doctrine of res ipsa loquitur is not applicable; Peters v. Lynchburg, etc., Co., 108 Va. 333, 61 S. E. 745, 22 L. R. A. (N. S.) 1188; 20 R. C. L., pp. 184-6; and, hence, the instruction was proper in that it told the jury what it did with respect to the burden of proof resting upon the plaintiff.
The instruction was not erroneous, because, when read along with instruction No. 8, given for the defendant, it did not allow a recovery although the jury might have believed from the evidence that the case fell within the doctrine of the last clear chance; for the reason that the instruction had also to be read along with instruction No. 12, given by the court on its own motion, and that instruction so qualified instruction No. 7 as to allow recovery in such case. Instruction No. 12 correctly states the doctrine of the last clear chance as applicable to the evidence. Va. Trust Co. v. Raymond, 120 Va. 674, 91 S. E. 613. Moreover, the plaintiff’s theory of the case, based on this doctrine, was distinctly and correctly submitted to the jury by instructions Nos. 4 and 6, and it is plain that the jury were not misled into ignoring this issue in the case.
3. Was instruction No. 9, given for the defendant, erroneous?
The question must be answered in the negative.
We do not consider this instruction as in conflict with instructions Nos. 1 and 4 given for the plaintiff, as argued for the plaintiff, but as being corollary thereto. Va. Ry. & Power Co. v. Meyer, 117 Va. 409, 84 S. E. 742; Roanoke Ry. Co. v. Carroll, 112 Va. 598, 72 S. E. 125; Gunter’s Adm’r v. Southern R. R. Co., supra (126 Va. 565, 101 S. E. 895).
4. Was instruction No. 10, given for the defendant, erroneous?
The question must be answered in the negative.
We think that, in the particular of the duty to keep a vigilant lookout ahead, the ordinances of the city imposed no higher duty upon the motorman than the law imposed upon Mrs. Ashby. Upon both alike the duty imposed in this particular was that of the exercise of ordinary care. But if this were not a correct statement of the law it is so stated in instruction No. 3, given at the request of the plaintiff; so that if it were error (which we hold it were not) it would be invited error; of which the plaintiff would not be heard to complain. Forbes v. So. Cotton Oil Co., 130 Va. 245, 108 S. E. 15, Big Sandy, etc., R. Co. v. Ball, 133 Va. 431, 113 S. E. 722.
With respect to the failure of the instruction to except the ease from its operation if the jury believed from the evidence that it fell within the doctrine of the last clear chance, instruction No. 12 took care of that feature, as above noted in connection with the com si deration of instruction No. 7 given for the plaintiff. It is true that instruction 12, in terms, modifies the instructions given for the defendant only “wherever you” (the jury) “are instructed that you” (the jury) “may find for the defendant, should it be proven that the plaintiff was guilty of contributory negligence”; and instruction No. 10 does not use the precise terms that the jury are instructed that they may “find for the defendant”; but it, in substance and plain meaning, in-
What is just said also disposes of the only objection made to instruction No. 11, given for the defendant.
5. Did the trial court commit reversible error in permitting to be introduced and remain in evidence certain testimony of the motorman, set forth in the statement preceding this opinion, on the subject of why he acted as he did in the emergency immediately preceding the accident?
The question must be answered in the negative.
All of this testimony was obviously properly admitted in evidence, except the following question and answer: “Q. Could you run a street car in any other way? A. No, sir.” This was obviously improper testimony and should have been stricken out. But plainly this is too insignificant a matter to constitute reversible error. We doubt if there was ever a perfect trial of any ease. And, as we have repeatedly held in sustaining the decision of trial courts in civil cases, we will not reverse any case unless it is made to affirmatively appear from the record that there has been harmful error — that is, error which the record shows, more probably than improbably, affected the verdict of the jury or the judgment of the court prejudicially to the party complaining thereof. Finally:
6. Did the trial court err in permitting to be introduced and remain in evidence the testimony of the expert witness Heath, upon his being recalled as a witness in sur-rebuttal, set forth in the statement preceding this opinion?
This question, also, must be answered in the negative.
Further: The order in which witnesses are allowed to testify, and when they may be recalled and permitted to supplement their testimony by supplying statements omitted on their original examination, or by enlarging their original testimony, or going more into detail, are all matters so largely in the discretion of the trial court that it is seldom its exercise will be interfered with by an appellate court, and then only when there has been a manifest abuse of the discretion which appears to have been prejudicial to the complaining party.
The case must be affirmed.
Affirmed.