98 Va. 22 | Va. | 1900
delivered the opinion of the court.
This action of trespass on the case was brought by Mary B. Hildebrand to recover damages for an injury alleged to have been sustained by her in consequence of the careless, negligent, and reckless conduct of the plaintiff in error in running its electric cars over a certain highway extending from the city of Richmond to Oakwood Cemetery, in the county of Henrico.
The proceedings in the Circuit Court resulted in a verdict and judgment for $12,250 against the defendant company, which we are asked to review and reverse.
The court is of opinion that Instruction Ho. 5 given for the plaintiff was erroneous, and that a reversal of the judgment is for such error a necessity. That instruction is as .follows:
“ The court instructs the jury that in determining the question of negligence in this cause, they should take into consideration the situation and conduct of both parties at the time of the alleged injury, as disclosed by the evidence, and if they believe from the evidence that the injury complained of was caused by the defendant company’s servants, and without any greater want of ordinary care and caution on the part of the plaintiff than was*24 reasonably to be expected of her under all the circumstances, then the plaintiff is entitled to recover.”
The court is further of opinion that it was error to give Instruction Ho. 6 for the plaintiff. This instruction tells the jury that if they believe from the evidence “that the plaintiff, in stepping upon the track of the defendant at the time of the accident, failed to look and listen for the approach of a car upon said tracks, yet she is not disentitled to recover on that account, if the jury further believe from the evidence that by looking or listening she could neither have seen nor heard the approaching car.” As an abstract proposition, this statement of the law is sound, but there is no evidence in the record upon which it could be predicated. It was, therefore, calculated to mislead the jury, and for that reason should not have been given. This error, however, if there were no other, could not avail the plaintiff in error, for the reason that in its sixth instruction the same fact was assumed that was assumed by the instruction complained of. A party cannot invite the court to commit error by asking for an erroneous instruction, and be permitted after-wards to have the verdict set aside for the error into which the court has been thus misled. Kimball & Fink v. Friend, 95 Va. 125; Home Insurance Co. v. Sibert, 96 Va. 403.
The court is further of opinion that there was no error, to the prejudice of the defendant company, in rejecting its 8th, 9th and 10th instructions, or in giving the instructions asked for by the plaintiff, other than those already pointed out as erroneous.
The action of the lower court in overruling the demurrer to the declaration and each count thereof, is assigned as error, and, should have been first considered in disposing of the questions raised.
As the judgment complained of must, for the reasons already
The declaration repeatedly states that the plaintiff was struck by the defendant company’s car while she was on its track, upon which she had just stepped. This language, in the connection used, construed most strongly against the pleader, would convey the idea that the collision, which caused the injury, was simultaneous with the act of the- plaintiff in stepping upon the track. It would seem to follow necessarily, from this construction of the language, that the plaintiff was guilty of negligence in stepping immediately in front of a rapidly moving car, the consequences of which could not be avoided by the utmost care on the part of the defendant. If this be the correct interpretation of the language of the declaration, then the demurrer should have been sustained, for the plaintiff could not recover upon the cause of action stated. Dun v. Seaboard R. Co., 78 Va. 645. An opportunity will, however, be given the plaintiff to amend her declaration, and make clear .what is, to say the least, in doubt in respect to the meaning intended to be attached to the language referred to.
We do not notice the last assignment of error, because it would be improper to comment upon the evidence when there is to be a new trial.
Tor these reasons, the judgment must be reversed, the verdict set aside, the demurrer sustained, and the cause remanded for a new trial, with leave to the plaintiff to amend her declaration.
Reversed.
