84 Va. 747 | Va. | 1888
delivered the opinion of the court.
This suit was brought for damages for the death of the plaintiff’s intestate, Miles Patteson, alleged to have been caused by the negligence of the defendant company, on the 23d day of March, 1886, in the city of Lynchburg, Va., while the said Patteson was in the discharge of his duty as an employee of the said company. Upon the trial of the case there was no demurrer to the declaration, no objection to any portion of the evidence, nor instructions asked of the court by either side; and the jury, upon the evidence, rendered a verdict for the plaintiff for $3,000 damages, apportioned, under the statute, to the widow and the infant child of the deceased. Thereupon the defendant company moved the court to set aside the verdict and grant it a new trial, on the ground that the verdict was contrary to the evidence, which motion the court overruled, and entered judgment that the plaintiff recover against the defendant $3,000, with interest thereon, to be computed at the rate of six per centum per annum from the 22d day of December, 1886, till payment, and the costs, etc.
The only question presented by the record is, whether the court below erred in overruling appellant’s motion for a new trial, on the ground that the verdict of the jury is contrary to the evidence. The facts proved in the trial are not certified by the trial court, but the evidence is certified in full. Such being the case, the well-established rule of this court is, that
The judgment complained of in this case will be affirmed, or reversed, according as the verdict of the jury shall be warranted, or unwarranted, by the evidence adduced by the plaintiff in the court below. The case for the plaintiff, who prevailed in the court below, rests upon the evidence of four witnesses :
First. Policeman Adams testified that he is a member of the police torce of the city of Lynchburg; that on the night the plaintiff’s intestate came to his death, witness saw him hanging on the pole of the electric light, at the corner of Eighth and Jefferson streets; “he was dead, and was-taken down in my (witness’) presence. I passed him just before he went to that pole, and a few minutes after saw him dead. The defendant company had its city office on Eighth street, near the Arlington Hotel. I knew Miles Patteson (plaintiff’s intestate) when I saw him. He was a colored man, about thirty years of age. He was killed about eight o’clock in the evening of the 28d of March, 1886; think he was a sober man, and seemed to he sober then. When I first saw him on the street, shortly before he was killed, he was carrying a short ladder, about eight feet long, the hands used in climbing the poles. The pole on which he was killed is about twenty-one to twenty-two feet high. I do not know what Patteson’s business was—what his duties were. The electric lights in that part of the city were not lighted at that time. The lamps light up twice— that is, there were two flashes between the time I first saw him on the street and the time I saw him on the pole dead. I saw his overcoat flapping, and called to him, and got no answer. I then went and saw Mr. Fraley, the superintendent of the defendant company at Lynchburg, and told him there was one of his men killed, and where. In the interval between the two flashes I walked about half a square. It was a drizzling night.” ■
F. M. Bryant, a white man, a witness for the plaintiff, testified: “At the time of Patteson’s death, I was in the employment of the defendant company; was a day-trimmer. I worked on circuit No. 3; his was No. 1. No. 3 is the one furthest from the river, on College Hill. Circuit Ho. 1 was open, and all started out to look for the break. The lamps flashed up twice. I started back then, and, knowing Patteson was a new hand at the business, wont down towards the direction he had gone. The current was on when we started out. I took a shunt-cord with me. There were some four, five, or six, in the office in good order. It was the superintendent’s business to see that the shunt-cords were in good order. Mr. Covert, Mr. Traley’s assistant, fixed them. I don’t think the one Patteson had was in good order. I think some of the insulation was off. Mr. Covert had been fixing the shunt-cords, but I don’t think they had finished fixing them—they were called off about some other work, and did not. finish. I have had pretty heavy shocks fixing lamps at night. There is more danger in rainy weather. It had been drizzling that evening. The only change made, was to look for the break when there was no.current on. There is no necessity for the current to be on to look for a break in the circuit. Bo not know what Miles’ pay was; think it was nine dollars a week. I was paid ten dollars at that time. The usual pay was from nine dollars to ten dollars. Miles was a clever colored man— seemed to be careful, sober, about thirty years old, in good health, and strong. Bid not know him well—only for two or three weeks, and not much with him. He had been in employ-
Mosby H. Payne, Esq., (white) testified: “ I had known Miles Patteson about two years. His wife was my house servant. He was at my house two or three times a day and to his meals. Have seen him trimming the electric lamps. He was about thirty years of age, in good health and good physique, of average intelligence for a colored man, and had no special intellect, nor was he the other way. I don’t think he had any education. I do not know whether he could read or write. Rever ásked what wages he got. He had no child at the time of his death. His wife was pregnant of a child—born since. She ■was greatly distressed at his death, and was very ill for some time. She fainted when she heard of it, and fainted once or .twice during the night. The doctors were with her all night. I sat up with her, too. She was confined to her bed for a week or ten days-. Hr. Thornhill stayed with her one or two nights. Her condition was alarming, especially during the first night. I saw Miles Patteson’s body on Jefferson street, near the place on which he was killed. It was lying on the counter of a shop near by. This was about twenty minutes after eight o’clock. His hands were badly burnt—the right hand nearly to the bone. I do not know how long the' illuminating by electric light had been in use in Lynchburg; I suppose some twelve or fifteen months. Patteson was in the employment of the defendant company, the last time, for about three or four
This is, with the defective shunt-cord exhibited in evidence upon the -trial, the whole of the plaintiff’s evidence as certified in the record. Testing the ease upon the plaintiff’s evidence alone, we are of opinion that the verdict is wholly unwarranted by the evidence, which, we think, fails to make out the plaintiff’s case.
,The gravamen of the plaintiff’s' case, as set forth in the declaration, is, that Patteson’s death was caused by the negligence of the company in whose service he was engaged when he was killed, as stated in the evidence, on the 23d of March, 1886, in the city of Lynchburg, about eight o’clock P. M., upon one of the electric Mmp-posts of the defendant company. How the death was brought about the evidence does not disclose; and the case alleged or averred in the declaration is not sustained by the plaintiff’s own evidence—the probata do not sustain the allegata in the case. Each count in the declaration charges, that, by the wrong and negligence of the defendant company, the electric current was caused to pass through and kill the body of Patteson while was engaged in the discharge of his specially appointed duties in the service of the defendant company.
There is nothing in the plaintiff’s evidence to show that the defendant company, in any way, by commission or omission, caused the electric current to strike and pass through Patteson and kill him; but, from the plaintiff’s own showing, the inference of contributory negligence by Patteson, as the proximate causa mortis, is irresistible. The rule as laid down by this court, in the case of Baltimore & Ohio Railroad Company v. Whittington, 30 Gratt., 805, is “If the defendant relies upon contributory negligence of the plaintiff to defeat the action, he must prove it, unless the fact is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the
The plaintiff’s evidence shows that there were three, four, five or six shunt-cords in the office in good order; and Cobbs, a colored witness for plaintiff, testifies that when he arrived in the office, late, Patteson was coming out with the shunt-cord, which he had selected; and that he (Cobbs) got from those left thereby Patteson, his shunt-cord, which was in good order. If, in fact, the defects in the shunt-cord used by Patteson, caused his death, the evidence shows that they were open, patent, and visible to Patteson, who chose it for himself, and used it, unhesitatingly and without complaint, of his own selection, with deliberation and without necessity, requirement, or direction so to do. The servant is bound to see for himself such risks and hazards as are patent to his observation; and
"We are of opinion, that the plaintiff’s own testimony fails to prove negligence on the part of the defendant company, unmixed by the concurring and co-operating negligence of the decedent, but for which the accident could not have occurred, and that, therefore, the verdict is wrong, and the judgment founded on it is erroneous; and that the verdict' must be set aside and the judgment reversed and annulled.
Judgment reversed.