133 Va. 173 | Va. | 1922
delivered the opinion of the court.
The plaintiff, Meanley, was struck by a car of the defendant company at Hopewell, instituted his action therefor, and upon the trial there was a verdict and judgment in favor of the company, of which he is here complaining.
The plaintiff, who lived at Hopewell, had gone to the station with his sister and her infant child to meet his brother-in-law, who was expected on one of the
We do not deem it necessary to discuss all of the questions referred to in the briefs of counsel, because the facts in this case are few and simple, and the questions involved- have been so frequently discussed by this and other courts as to make further discussion unnecessary.
That the plaintiff was clearly guilty of negligence contributing to his injury is manifest, and it is likewise clear that the jury by their verdict have so found. The rear window of a railroad station located within about four feet of a track upon which railway cars
There is, however, one assignment of error to which we must direct our attention in justice to the plaintiff. The trial court refused to give an instruction offered by the plaintiff, designated as “b”, which reads thus:
“The court instructs the jury that even though they believe from the evidence that the plaintiff was guilty of negligence in going upon the platform and standing at the window of the station of the defendant with his back toward the car and railroad track, yet this will not prevent the plaintiff from recovering in this case if the jury shall further believe from the evidence that the motorman in charge of the defendant’s car saw, or by the exercise of ordinary care, foresight and precaution in keeping a lookout ahead, could have seen that the plaintiff was in danger of being struck by the said car or any part thereof, should said ear be run by the place around the curve of the track at the. point where the plaintiff was so standing and that the motorman could have warned the plaintiff in time for him to remove himself from such danger, or stopped said car by the exercise of ordinary care and caution in time to have prevented the said car or any part thereof from striking the plaintiff, but failed so to do, then the jury should find for the plaintiff.”
This, of course, submits to the jury the question of whether the plaintiff’s peril should have been discovered, and whether thereafter the defendant had the last clear chance to save him from the consequences of his own negligence.
Every other .issue raised in the case has been decided by the jury against the plaintiff under instructions which they could hardly have misunderstood, but this issue has never been submitted. Our judgment, therefore, is to remand the case for a new trial, without reopening all of the issues, but merely for the purpose of determining whether or not, as a fact, the company, through its motorman, by the exercise of reasonable care and without the neglect of his other duties, should have perceived the peril of the plaintiff and thereafter, by the exercise of reason
Reversed.