99 Va. 48 | 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 $12,250.00 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*50 «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 reasonably to be expected of her under all the circumstances, then the plaintiff is entitled to recover.”
By this instruction the right of the plaintiff to recover is made to depend solely upon the question whether she exercised «ordinary care and caution; whereas, it is essential that the negligence of the defendant company should be established Before there can be a recovery. The language of the instruction is, “that the injury complained of was caused by the defendant company’s servants.” It should have been, “that the injury complained of was caused by the negligence of the defendant company’s servants.” The defendant’s servants undoubtedly caused the injury to the plaintiff, but that would not entitle her to recover unless it further auueared that the injury was caused By their negligence. . The instruction, as given, is wholly misleading as a rule and guide for the jury, and it is impossible to estimate the effect it may have had in bringing them to their -verdict.
Instruction Ho. 2, given for the defendant company, is as follows:
“ The jury are instructed that the mere fact that the injury to the plaintiff was caused by the defendant’s car will not warrant them in finding a verdict against the' defendant. The gravamen of this action is the alleged negligence of the defendant, and until this is shown 'by a preponderance of evidence, to the satisfaction of the jury, there can be no recovery against the ■defendant, and no case is made against said defendant which it is necessary for it to answer.”
This is a clear and ample statement of the law that there can Be no recovery in such a case until the negligence of the defend
In Thompson on Trials, Vol. 2, section 2326, it is said: “ The giving of instructions which are inconsistent with or contradictory to each other is error, for the reason that the jury will be as likely to follow' the good as the bad, and it cannot be known w'hich they have followed and which way soever they go, if there is an appeal or writ of error, the judgment must be reversed. Therefore, an erroneous instruction is not cured by another instruction on the same subject, which is correct, unless the ■former is by the latter specifically withdrawn.”
Hor can the contention be sustained that the error under •consideration should be disregarded, upon the well settled rule •of this court that a judgment will not be reversed if the court can see from the whole record, that, even trader correct instructions, a different verdict could not have been rightly found, or if it is able to perceive that the erroneous ruling could not have influenced the jury. Richmond Rwy. Co. v. Garthright, 92 Va. 627.
The evidence is conflicting, and the court is unable to say •either that a different verdict could not have been rightly found under correct instructions, or that the erroneous ruling could .not have influenced the jury.
The court is further of opinion that it was error to give
The court is further of opinion that there was no error to the prejudice of the defendant company in rejecting its eighth, ninth and tenth 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 given, be reversed, we feel less hesitation in holding the declaration defective in stating a good cause of action.
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
"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.
For 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.
Beversed.