154 Va. 39 | Va. | 1930
delivered the opinion of the court.
This is an action for personal injury in which there was a verdict for $7,500.00 in favor of the plaintiff, Stella H. Ellison, which the trial court set aside and then entered judgment in favor of the defendant company.
The only assignment of error is that the trial court erred in setting aside the verdict of the jury, and that instead of so doing it should have entered judgment for the plaintiff upon the verdict.
The plaintiff’s negligence is apparent, and the only question at issue is whether or not she is entitled to recover under the last clear chance or discovered peril doctrine.
The rules of law applicable to such cases have been frequently stated, and it is doubtful whether any additional statement will clarify them. The difficulty in most cases, and in this case the quite serious difficulty, is to apply the unquestioned rules of law to the peculiar facts shown by the record.
This is a general statement of these facts from the plaintiff’s viewpoint: The company’s railway line runs from Hampton to Langley Field, in the county of Elizabeth City. At the place of the accident the defendant company owns its right of way, which adjoins the public highway. This highway has a concrete driveway between which and the car tracks at this point the intervening space is level and about
The precise point upon the track where her foot was
At the time of the occurrence, a United States Army truck, also going to Langley Field, was traveling along the concrete highway in the same direction. This truck was occupied by three soldiers on the front seat and two on the rear. Two of these testified. Sometimes the car would be ahead of the truck, and when the car stopped the truck would overtake and pass it. The driver of the truck testified that he saw the plaintiff when she approached the street car track from the right, called the attention of the others by him on the seat to her and that she was going to be struck by the street car then advancing upon her, and he shouted when he appreciated the danger, hoping to warn either the motorman or the plaintiff, but neither heard him. He also testified that the motorman at this critical period was not observing the track in front of him, but was looking over toward a field to the right, seeming to be heedless of the danger of the plaintiff.
From the viewpoint of the defendant, all of the testimony which tends to show the negligence of the motorman is contradicted. The motorman, in substance, testified that before he saw or could see the
Certainly then it is a case in which no demurrer to the plaintiff’s evidence could have been properly sustained. It is also true that no motion to strike out ■the evidence introduced by the plaintiff could have been sustained. Manifestly it was a case for submission to the jury upon the clearly established fact that the plaintiff was grossly negligent and that she could only recover if the motorman, in the exercise of ordinary care under the circumstances, could and should have saved her from injury. Nearly all of the instructions properly and carefully directed the attention of the jury to this question as the only substantial question in the case. The jury having decided this issue in favor of the plaintiff, our problem is to determine whether the trial court was justified in setting aside the verdict.
This expression by Burks, J., in Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 259, 108 S. E. 15, 19, has been frequently quoted with approval: “It ■is not sufficient that the judge, if on the jury, would have rendered a different verdict. It is not sufficient
Ashby v. Virginia Ry. & Power Co., 138 Va. 310, 122 S. E. 104, is relied upon by the company here as quite like the case at bar. So it is, for there the plaintiff was an old lady, with her head covered with a white shawl, crossing the street with her head bent downward and looking neither to the right nor to the left as she approached the track, and she was not allowed to recover. There, however, practically the
In this case there are certain physical facts which certainly tend strongly to support the conclusion of the jury. After the plaintiff emerged from behind the obstructions at the gateway, the view was unobstructed for several hundred feet. It is shown that as she walked towards the track and between the rails she appeared to be unconscious of her peril. The physical fact that the spot of blood was found upon the rail, say twenty-eight feet away from the center of the walkway crossing the track, appears to identify the place at which she was struck. It is difficult, if not impossible, to reconcile this with the testimony of the motorman, for if he is right in saying that he did not see her and that she did not emerge from behind the obstruction until he was eighty to 100 feet away from her and while she was walking slowly and he was going at twenty-two miles an hour, it would be impossible for her to have walked that distance while the car was only traveling from eighty to 100 feet. This physical fact, the spot on the rail, goes far to support other testimony in the case that the plaintiff emerged into view when the ear was two or three hundred feet away, and .that when two or three hundred feet away the motorman sounded a signal of alarm. It seems far more probable that he mistakenly concluded that she would take care of herself, and if it be true, as one of the witnesses said, that in the interval he looked away from the track, or if he thereafter failed to see
This ease may. be compared with Shoemaker v. Andrews, post, page 170, 152 S. E. 370, this day decided, in which the procedure was similar, but the judgment of the trial court in favor of the defendant, notwithstanding the verdict, 'was affirmed. There the physical facts discredited the verdict, while here they sustain it.
For the reasons which we have indicated, we shall enter judgment here upon the verdict in favor of' the plaintiff.
Reversed.