Norfolk & Atlantic Terminal Co. v. Morris' Administratrix

101 Va. 422 | Va. | 1903

Keith, P.,

delivered the opinion of the court.

Morris’ administratrix sued the Norfolk & Atlantic Terminal Company to recover damages for the death of her intestate, which it is alleged was caused by the negligence of the defendant company. There was a verdict and judgment against the company, to which, upon its petition, a writ of error was awarded.

The first error assigned is to the ruling of the trial court under the following circumstances:

The defendant company, to maintain the issue upon its part, introduced George 0. Reid, who, having been examined in chief, upon cross-examination by plaintiff’s counsel, was asked the following question: “Did this car give any signal before it started?” cDefendant objected to this question on the ground that it referred to a matter-not testified to by witness on direct examination, whereupon counsel for plaintiff said they would make witness their own. Defendant then objected on the ground that it was not the “proper time for the introduction of other witnesses on behalf of plaintiff, as defendant was not through with its witnesses, and that in no event could plaintiff introduce other witnesses to testify except in rebuttal.” The objections were overruled, and the witness was permitted to answer the question.

This is no ground for reversal. In Flick v. Commonwealth, 97 Va. 766, 34 S. E. 39, it was held that the order in which evidence is introduced is a matter largely in the discretion of the trial court, for which this court will not reverse the judgment of the trial court save in very exceptional cases. It will not reverse merely because evidence proper in chief was introduced in rebuttal.

The second bill of exceptions is to the action of the court in granting certain instructions asked by the plaintiff and in refusing those asked by the defendant.

The petition of plaintiff in error in its assignment of error with respect to the instructions makes specific objection only to the second and third of those given by the court, and refers in general terms to the sixth instruction asked for by the defendant as stating the law correctly. The instructions given to the jury will appear in the report of the case. They involve no principle that has not been time and again dealt with by this court, and we do not deem it necessary to advert to them further than to say that they fairly and correctly state the law of the case in every aspect presented by the evidence.

The sixth instruction asked for by the defendant company above referred to is in the following words:

“The defendant company was bound to have its cars stop a reasonable time at its Sewell’s Point terminus to allow passengers to get on the same; but, if its cars did so stop, it was not bound to look after the movement of all of its passengers and of said E. E. Morris, but that said passengers and said E. E. Morris were presumed by the law to take care of themselves and avail, themselves of the reasonable opportunity to board the cars which was afforded them.”

Itjvas not error to refuse this instruction. It does not correctly state the duty of the defendant company to its passengers in getting on its cars, but the law upon that branch of the subject is well stated in the third instruction given by the court.

The defendant company moved the court to set aside the verdict and grant a new trial, and its refusal to do so constitutes the remaining assignment of error.

The evidence tends to prove the following state of facts: The Norfolk & Atlantic Terminal Company owned and operated a railway line from the city of Norfolk to Sewell’s Point. Its terminal at Sewell’s Point is at the end of a large pier several hundred feet in length. At the end of its track on this pier, and on the southern side thereof, there is a coal bin. Between the coal bin and the side of a car standing on the track there is a space of about 12 to IS inches. On the northern side of the track is a warehouse. Between the warehouse and track there is a space of from 12 to 15 feet, from which pássengers usually get on board the cars. On the 9th of June, 1901, between I and 8 o’clock P. M., a closed motor car, to which was attached an open trail car, stood at this terminus for several minutes, waiting to'receive its passengers. There was quite a crowd gathered, seeking to take the train on its return trip to Norfolk. Among them was It. It. Morris, who was thrown from the car when it started and sustained injuries from which he died on the evening of the next day.

There was, as we have said, quite a crowd seeking transportation to Norfolk. There is evidence which strongly tends to prove that the car started without a proper signal, and with an unusual and violent jerk; and the jury, by its verdict, have established as true all that the evidence tended to prove in support of the verdict. Upon every point of interest in the case there is a conflict of testimony. This is true not only as to all the facts relied upon to establish the negligence of the company, but it is equally true with respect to evidence which tends to prove contributory negligence of the plaintiff’s intestate.

It is claimed on the part of the company that the cars were filled to overflowing; that Morris was warned not to attempt to board the cars, and that when he had done so he was ordered to get off. But here we are again confronted with a conflict of the evidence. It is true that the crowd was great and pressing, but it is impossible for the court to say under the circumstances of this ease that it was contributory negligence for Morris to-get- upon it. All that this court can do in such a case is to see that the jury is properly instructed, and that the testimony, considered as upon a demurrer to the evidence, is sufficient to-support the verdict. With this our duty ends, and the law leaves the protection of the litigant to the jury under the supervision of the trial court.

It may be thought that we have dealt somewhat summarily with this case, but there is nothing of novelty in the law which it involves, and a discussion of the facts would be unprofitable*.

The judgment is affirmed.

Affirmed*