Bowen v. Flanagan

84 Va. 313 | Va. | 1888

Hinton, J.,

delivered the opinion of the court.

This is a very clear ease. The action is trespass on the case, to recover damages for injuries sustained in a collision with a mule and cart, under the care and control of the defendant’s servant. The jury returned a verdict for the plaintiff of $2,500, upon which judgment was entered, and the effort is now made to overturn that judgment; but it cannot avail. The plaintiff is a “ telegraph lineman,” and his business is to keep up the batteries and automatic signals. At the time of the accident he was employed by the Chesapeake and Ohio railway company, and was riding upon a railroad velocipede, a vehicle used for purposes of transportation from one part of the road to another in order to avoid the necessity of waiting for the regular trains. The scene of the accident was at the intersection of Seventeenth street and the railroad, in the city of Richmond. "When the plaintiff, after he had crossed Eighteenth street, approached Seventeenth street on the Chesapeake and Ohio railway track, he perceived the mule and cart standing on Seventeenth street, about eight feet from the outside rail of the track nearest Olay street, when he reduced his speed from between three and four miles per hour, the rate at which he had been traveling, to about two miles per hour, and rode on at this reduced speed until he reached the middle of Seventeenth street, when the mule suddenly “ started off,” crossed the first track, and collided with the plaintiff’s velocipede on the second track. By the collision the plaintiff was thrown to the ground; his leg was broken in two places by the wheel of the cart, which passed over it, and it seems probable from the testimony of Dr. Lewis Wheat, the attending surgeon, that he will never be able to resume his former occupation. At the time of the accident, it is perfectly clear, from evidence introduced for the plaintiff, which, as the evidence, and not the facts, is certified, is all that we are- permitted to look to under the established rule of this court, that the driver was mot with or along side the mule and cart. Upon this evidence, which we must assume the jury credited, and an instruction which correctly propounded the law, the case was submitted to the jury, with the result indicated above; and we think the plaintiff is entitled to retain his verdict. As the evidence shows, the plaintiff did all that the law required of a traveler at a crossing. He reduced his speed to such an extent that a collision might have easily been prevented, if the driver had been present, exercising the care and control of the mule demanded of him by the law under the circumstances. This is all that the plaintiff in error was under any obligation to do. He was not required to actually stop. He had no reason to suppose that the driver was not with his mule, and he was not bound to anticipate that the driver would be negligent in the discharge of his duties. Under these circumstances, it appears to us clear that if the driver had been present exercising the care and control of the mule required of him by the law, the accident could not have happened. The negligence of the driver, therefore, must be regarded as the proximate cairse of the collision, and the injuries which resulted to the plaintiff therefrom.

As to the after-discovered evidence, upon which it is sought to set'aside the verdict, it is sufficient to say that in our judgment it is not of such a character, as to justify us in assuming that if it was admitted, it would produce a different result on a new trial. Our conclusion therefore is that the judgment complained of is right, and must he affirmed.

Decree aeeirmed.