Ashby v. Virginia Railway & Power Co.
122 S.E. 104
Va.
1924
Check Treatment
Sims, P.,

аfter 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*325cised reasonable care, that the plaintiff’s intestate, Mrs. Ashby, was unconscious of the approach of the street car and that it was highly probably that she did not intend to stop and let the ear pass, but intended to attempt to cross the track in front of it? That is to say, was the evidence sufficient to supрort the verdict in finding that the last clear chance doctrine was not applicable to the ease?

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 рlaintiff’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, *326126 Va. 97, 101 S. E. 141, 871; Gunter’s Adm’r v. Southern R. R. Co., 126 Va. 565, 101 S. E. 885; Director General v. Blue,. 134 Va. 366, 109 S. E. 482, 114 S. E. 557. It is sufficient here to say that it is settled, certainly in this jurisdiction, that when preceding the accident the person subsequently injured is in a place of safety the last clear chance doctrine does not apply in any case of railway accidents, unless and until there is something to suggest to the motorman, or other person in charge of the operation of the car or other instrumentality, that the person subsequently injured does not intend to remain in a place of safety until the car or other instrumentality passes, which something is sometimes referred to as a “supеr-added fact,” and must be something abnormal in the attitude or situation of the person afterwards injured, making it apparent that he is unconscious of his peril, because of his attention being especially concentrated upon something else, or beсause of some other apparent interference with the normal result of the use of his five senses. There was nothing of that sort in the instant case. On the contrary there was evidence tending to show an affirmative manifestation on the part of Mrs. Ashby of consciousness of the approaching street car— her pausing- — hestitating—as if she were about to stop and let the car pass, just before the motorman for the first time thought that she would not stop. And certainly there was nothing in the evidence to prevent thе jury from believing the testimony of the motorman and from concluding therefrom and from other evidence that the motorman, acting in good faith and with reasonable care, in his effort to ascertain whether Mrs. Ashby was.conscious of her peril and, in keeping the lookout which the law requires, saw and could have seen nothing making it apparent that she was unconscious of her *327peril, until it was too late for him to avert the accident, or lessen the injury, by any action wMehdt was then in his power to take.

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 differеnt 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 vеrsion 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 motormаn 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 aрproacMng 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 lоoking 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*328fendant'in the instant ease, that were absent in the Blue Case. -

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 fаcts, 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 defеndant, 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 а 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.

*329The use of the language “and to the satisfaction of the jury” in such an ‍‌​​‌​​‌​​​‌‌​‌​​‌‌‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌‌​‌‍instruction is not to' be commended. The subject is fully dealt with in Shiflett’s Adm’x v. Va. Ry. & Power Co., 136 Va. 72, 116 S. E. 500, decided in 1923, subsequently to the trial of the instant case, and it is presumed that hereafter the trial courts of the State will not embody such a phrase in suсh an instruction, but, as held in the Shiflett Case, we do not consider the use of such language in such an instruction, of itself, reversible error.

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 сorrectly 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 bеing 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).

*330It is true that the instruction is somewhat argumentative, and is not to be commended in that feature of it, ‍‌​​‌​​‌​​​‌‌​‌​​‌‌‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌‌​‌‍but it seems clear that it was not misleading to the jury when read along with the other instructions given.

4. Was instruction No. 10, given for the defendant, erroneous?

The question must be answered in the negative.

Wе 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 оrdinary 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 tо 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 connеction 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 negligencе”; 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-*331streets the jury that, if it be proven that the plaintiff was guilty of contributory negligence, the plaintiff “cannot recover in this case;” which is the same thing, differently stated; and it is manifest that it is most improbable that the jury mistook such meaning. . .

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 evidеnce, 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 а 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 testimоny 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.

*332The offiy ground on which the correctness of the action of the court here in question is assailed is that, between the previous testimony of Heath on the same subject and his being recalled, the defendant had rested and the plaintiff had introduced the testimony of expert witnesses on the subject, and that Heath was permitted to be recalled to contradict such testimony for the plaintiff by suрplementing the testimony he had already given. The record before us does not sustain this ground. According to the record, the plaintiff was the first to introduce testimony on the subject mentioned; then followed the testimony of Heath and other expert witnesses for thе defendant, in sur-rebuttal, and the testimony of Heath, on being recalled, still “in surrebuttal,” was introduced before any further testimony was introduced for the plaintiff; and, thereafter, an expert witness for the plaintiff was recalled, who further testified in rebuttal of the “sur-rebuttal” testimony for the defendant on the subject.

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 mоre 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.