188 F. 276 | 4th Cir. | 1911
The defendant in error, Mamie Rephan, who for convenience will hereafter be called the plaintiff, is a citizen and resident of the city of Charleston, S. C., and is under 21 years of age. The plaintiff in error here, which was the defendant below, and will hereafter be called the defendant, is a corporation under the laws oE the state of Virginia, and owns and operates a street railway in the city of Norfolk, and a part of its line is along Granby street, which in its course intersects with another street called College place. On the 14th of November, 1908, between 7 and 8 o’clock in the evening,
•‘That on tJie 14th of November, 1908, tbe defendant, by and through its then servant and agent, was operating, running, and propelling one of its said cars upon, along, and over its said track, which was then laid upon Granby street as aforesaid, from a point at or near the intersection of a certain other street in the city of Norfolk, to wit, College place, en route to the intersection of Main and Granby streets, in the city of Norfolk, Va., and which said car was then operated, run, and propelled, by and through the said servant and agent of the said defendant, upon and along said Granby street; that on the day and year aforesaid the said plaintiff was walking along, upon, and across said Granby street, from the east side thereof to the west side thereof, as was her right; and thereupon it became, and was the duty of said defendant, by and through its then servant and agent, who was then running and operating said car, by means of electricity, to use due and reasonable care to prevent injury to persons using said Granby street, and •particularly to use due and reasonable care to prevent running down and against the said plaintiff; and to so run, operate, govern, and control its said ear, which was then being run and operated by and through its then servant as aforesaid to prevent injury to persons using said Granby street, and particularly to prevent running upon, against, and down the plaintiff. Yet the said defendant, wholly disregarding its duty in this behalf, when it, the said defendant, by its then servant and agent, who was in charge of and operating said ear, knew or by the use of reasonable care, could have known, that danger of collision with the said plaintiff was imminent, so negligently, care*279 lessly, and improperly ran and operated its said car; that by reason of the negligence, carelessness, and improper conduct of the said defendant in the running, management, operation, government, and control of said car, by and through its then servant and agent, the motonnan of said car, when it, the said defendant, knew, or by the use of reasonable care could have known Unit danger of collision with persons at, upon or near its tracks, and particularly collision with the plaintiff was probable, ran down, upon and against the said plaintiff and tile said plaintiff was knocked down, run down and was dragged, tvounded, lacerated and maimed, and so greatly injured and wounded, that by reason whereof, it became necessary to amputate the left leg of the said plaintiff above the knee, and that by reason of the negligence, carelessness, and improper conduct of the said defendant, the said plaintiff was so greatly injured and wounded, that she was confined to her lied for a long period, io wit, ten weeks, and was, and is, maimed, disfigured, and disabled for, and during the term of her natural life, and suffered great physical pain and mental anguish, and doth still suffer great physical pain and mental anguish, and always will suffer great physical pain and mental anguish, and hath’been obliged to pay and expend great sums of money, in and about the endeavor to get healed and cured of her injuries as aforesaid, to wit, one thousand dollars, and will ho compelled to pay and expend further stuns of money, in and about the endeavor to get healed and cured of her injuries as aforesaid, by reason of the negligence, carelessness and improper conduct of the said defendant, by and through its then servant and agent to the damage of the said plaintiff thirty thousand dollars. And therefore she brings her suit,” etc.
The second count is in substantially the same language except it charges specifically that the negligence consisted in the failure oí the motorman to keep the proper lookout 3t, upon, or near the tracks of the defendant, and the third count charges the negligence to consist in the failure of the motonnan to give warning as he approached this crossing with the. car that he was operating. The defendant’s counsel has not argued the demurrer at length, either orally or in the brief, but relies upon some decisions of the Virginia Court of Appeals to sustain the view that the declaration is insufficient. The sole objection to the declaration as a whole is set out in the demurrer as follows :
“This declaration, and each count thereof, discloses on its face such contributory negligence on the part of the plaintiff as would bar her recovery.”
The counsel, however, have not seen proper to discuss this general objection, but have confined the argument, both oral and in the brief, to the demurrer to the first count, which is as follows:
“The first' count of the said-declaration is so vague, uncertain, and indefinite, in that it does not set out what the alleged negligence of the defendant consisted of, and the defendant cannot properly concert its defense thereof.”
“■Tbis court has not laid down, nor does it propose to establish, any unreasonable rules with regard to particularity of averment in declarations in personal injury eases. All that the rule requires is that the declaration shall contain a concise statement of the material facts on which a recovery is demanded. Of course, the evidence relied on to sustain the averments of the declaration need not be pleaded.”
In the argument, however, defendant lays stress on the fact that the verdict was a general one, and it being insisted that the first count is bad, therefore, the judgment of the Circuit Court should be reversed; and in support of this view the Hunter Case, supra, is cited again and our attention is directed to the following quotation therefrom : -
“The verdict of the jury being general, the court cannot, say whether it rests upon the case stated in the first count of the declaration or upon that alleged in the second and third counts, which are bad. In this situation, the judgment complained of must be reversed, for the error of the court in not sustaining the demurrer to the second and third counts of the declaration,” etc.
“The declaration, and each count thereof, shows the relation between the plaintiff and the defendant, the duty of defendant to plaintiff, the failure of defendant to discharge that duty, and the resulting injury to tlie plaintiff. The declaration clearly informs the defendant of the nature of the demand against it, and states such facts as would enable the court to say, if the facts were proven, as alleged, that they established a good cause of action. Under such circumstances, the cause of action is stated with sufficient particularity.”
It is evident that this serious injury to the plaintiff was the result of the want of due care on her part, or on the part of the defendant, and we think that the testimony relating to this question pro and con is such that reasonable men may fairly differ as to what was the proximate cause of the injury. This court, in the case of Baltimore & Ohio Railroad Company v. White, 176 Fed. 900, 100 C. C. A. 370, reiterated the established doctrine with reference to the directing of verdicts when it said:
“Eor it has also become a recognized principle in tile administration of the law of negligence that where the facts and circumstances accompanying and surrounding an alleged negligent act are such that reasonable men may fairly differ as to whether there was negligence or not, the issue is for the jury, and it should be so submitted.”
Railroad Company v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, clearly lays down the law upon the last-mentioned principle, and is a leading authority on that subject. We call attention also to the case of McDermott v. Severe, 202 U. S. 600, 26 Sup. Ct. 709, 50 L. Ed. 1162, in which Mr. Justice Day, in delivering the opinion, says:
[7] “Negligence only becomes a question of law to -be taken from the jury when the facts are such that fair-minded men can only draw from them the inference that there was no negligence. If fair-minded men, -from the facts admitted, or conflicting testimony, may honestly draw different conclusions as to the negligence charged, tiie question is not one of law, but of fact, and to be settled 'by the jury under proper instructions. Railroad Company v. Powers, 149 U. S. 43 [13 Sup. Ct. 748, 37 L. Ed. 642]; Railroad Company v. Everett, 153 U. S. 107 [14 Sup. Ct. 474, 38 L. Ed. 373].”
However, we do not deem it necessary to discuss this question further, because it seems to us clearly that the trial judge properly submitted the issue to the jury.
“Tills is a suit tor damages alleged to have been sustained by tlie plaintiff by reason of the negligence of tlie defendant company, while crossing one of the tracks of the said defendant, on Granby street, in the city of Norfolk, and near the intersection of Granby street and City Hall Avenue. The plaintiff is not entitled to recover merely because of having sustained the injury complained of, but you must be satisfied from a preponderance of the evidence, to enable her to recover, that she sustained the injury sued for because of the negligence of the defendant company, or its agents and employes, without .icgligence on her part proximately contributing to the accident.
“Second Paragraph. That the injury having occurred to the plaintiff while passing along a street of the city, upon and over the tracks of the defendant company, also lawfully upon said street, that you must take into account in determining the question of negligence on the occasion in question the relative duties and obligations due by the parties one to the other, in the exercise of their right to use the said .street; which the court charges you is as follows: That they each had an equal right to the use of said street, tlie obligation and duty imposed upon them one to the other being correlative in that they should each have proper regard to the rights of the other, mid each should use reasonable care to avoid collision with and injury to the other in passing upon and over said street.
“Third Paragraph. That it was the duty of the plaintiff before attempting to cross the street at the point in question to look out and listen for approaching cars, and to exercise reasonable care in approaching and crossing defendant’s tracks, to avoid coming into collision with moving cars while crossing the street. If you believe from the evidence that she failed to perform these obligations, or either of them, on her part, on the occasion in question, and as a consequence sustained the injuries sued for, she cannot recover in this action, unless you further believe from the evidence that, the defendant observed the position of peril in which she had placed herself, or by the exercise of proper care might have observed the same, the defendant neglected to exercise reasonable care on its part, in the operation of, or in stopping its car, and as a consequence the injury sued for was sustained by the plaintiff while in the exercise of proper care on her part, then and in that event the plaintiff may recover.
“Fourth Paragraph. That it was the duty of tlie defendant company in operating its cars, propelled by electricity over and upon the streets of the city, at the time the plaintiff sustained the injury sued for, to exercise reasonable care on its part to avoid collisions with persons lawfully using said street, and passing over said tracks; that is to say. by and through its officers and employe's, to exercise reasonable care in the movement of its said car, and in looking out for and observing persons lawfully using said street, and passing upon and over said tracks, and to give due and timely signal and warning of the approach of said cars. And if you believe from the testimony*284 that the defendant, by and through its servants and employes, failed and neglected to perform its duty in either of the respects mentioned, and as a consequence the plaintiff, in the exercise of proper care on her part as here-inbefore stated, received the injury sued for, then you should find for the plaintiff.
“Fifth Paragraph. The court further charges you that the plaintiff, in attempting to cross the tracks of the defendant company, and the servants of the defendant company in operating its cars at the point .of the accident, each had the right to assume that the other would exercise ordinary care; the motorman that the plaintiff would not unduly thrust herself in a position of danger, and the plaintiff that the motorman would properly operate his ear so as not to expose her to unusual danger and peril; and if the jury believe from the evidence that the plaintiff was guilty of negligence in the particular mentioned, by negligently thrusting herself in front of, under or against the moving car, at a time when the motorman had the right to assume that she would not do so, and as a consequence sustained the injury sued for, then she cannot recover in this action; and, on the other hand, if you believe from the evidence that while the plaintiff in the exercise of reasonable care on her part, was attempting to cross the tracks of the defendant company, that the servants and employés of said defendant company either at the time of seeing, or when by the exercise of ordinary care they could have seen and observed the movements of the plaintiff, failed to exercise reasonable care in the operation of its said car for her protection, and as a consequence negligently ran over, upon or against her causing her to sustain the injury sued for, then the defendant is liable, and, in that event, you should find for the plaintiff.
“Sixth Paragraph. You are further charged that if the defendant relies upon the plaintiff’s contributory negligence to defeat her right of recovery in this case, the burden to establish such contributory negligence is upon the defendant, unless the existence of the same sufficiently appear from the testimony offered by the plaintiff.
“Seventh Paragraph. You are further charged that negligence as meant in this charge, is the failure to do what reasonably prudent persons would ordinarily have done in like circumstances, having due regard to the proper protection of the life and limb of themselves and others.
“Eighth Paragraph. You are further charged that by reasonable care is meant the exercise of that degree of prudence, care, caution, and foresight that ordinarily a prudent person under like circumstances and conditions would exercise for his or their own protection.
“Ninth Paragraph. You are further charged that in determining the quo: • tion of whether or not the injury complained of was the direct result of the plaintiff’s own negligence, or whether it resulted from the direct negligence of the motorman of the defendant in ruiming and operating his car on the occasion in question, you can take into consideration all the facts and circumstances as proved by the evidence to have existed at the time when, and place where, the injury occurred, and give 'to such facts and circumstances, and to the testimony of each witness, such weight only as you deem such fact or circumstance or testimony entitled to in connection with all the facts of the case; and that this being a civil case, it is incumbent upon the parties respectively, to establish their several contentions by a preponderance of the testimony.
“Tenth Paragraph. You are further charged that if you find the defendant is liable, then you should give the plaintiff such damages as she has proved in this case, not to exceed $30,000; and in estimating such damages you should take into consideration: First. Any permanent injury to the plaintiff. Second. Any shock to her system. Third. Any pain and anguish suffered by her.”
The duty of the trial judge with respect to instructions. to the jury is fully discharged when the law as laid down by him covers the entire case, and it is not error under such circumstances to refuse to give specific requests in the language of counsel. Iron Silver Mining
“When the court instructs the jury in a maimer sufficiently clear and sound as to the rules applicable to the case, it is not bound to give other instructions asked by counsel on the same subject, whether they are correct or not.”
We think in the present case that the instructions given met these requirements.
There is no error, and the judgment of the Circuit Court is affirmed.
Affirmed.