125 Va. 458 | Va. | 1919
delivered the opinion of the court.
James Oliver was struck and killed by an automobile operated by Miss Trauerman, and this is an action against her by Oliver’s administrator, alleging that the accident was due to her negligence.
The accident occurred on the north side of Broad' street, in the city of Richmond. Miss Trauerman was driving an automobile propelled by electricity and controlled by a steering lever and foot brakes. Oliver was standing on the sidewalk, with his back toward the street. The automobile, for some reason, ran wild, mounted the sidewalk, struck Oliver, and inflicted the injuries from which he died.
The negligence chiefly relied upon is that the defendant violated the ordinances of the city of Richmond: (1) in exceeding the speed limit, and (2) in attempting to pass to the right instead of the left of another vehicle just in front of her.
On behalf of the plaintiff, there was evidence tending materially to show that the defendant was running her car very much in excess of the speed allowed by the city ordinance, and that while doing so she attempted, in violation of another ordinance, to pass to the right of a beer wagon which was moving in the same direction as her car; that either because the space between this wagon and the curb was too narrow, or because she failed to accurately steer the car, she “side-swiped” the wagon, and, swerving to the right, ran up on the sidewalk where she struck the plaintiff’s decedent, and then ran thirty feet beyond'where he was standing, crashing into an electric light pole on the sidewalk, which brought the car to a stop.
The defendant’s theory, supported by material evidence in conflict with that offered by the plaintiff, was that she neither exceeded the speed limit nor attempted to pass to the right of the beer wagon, and that the accident was due to the fact that another automobile, coming up from the
The evidence on both trials would have supported a ver-. diet upon either of these two conflicting theories. The first verdict, which was for the defendant, was set aside on the ground of misdirection to the jury upon the law of the case; and the first assignment of error challenges the correctness of that ruling.
We are satisfied that the court was warranted in setting aside the first verdict for the error in refusing the instruction above discussed. It is unnecessary, therefore, to consider certain other alleged and apparently probable errors in the instructions on the former trial.
This brings us to the second verdict, which was for the plaintiff, and on which the judgment complained of was entered.
“The court instructs the jury that it was the duty of the defendant, Miss Trauerman, while driving her electric car or automobile along Broad street on the day of the alleged accident, to use ordinary care:
“(1) To keep the said car at all times under reasonable control by the use of the steering lever, brakes and current controller, with which the same was equipped.
“(2) To observe and obey the provisions of such traffic ordinances as the evidence shows were then in force in the city of Richmond, regulating the rate of speed of electric automobiles, and other like vehicles on Broad street, and regulating the manner in which parties driving such vehicles and going in the same direction should pass each other.
“And if the jury believe from the evidence that the said defendant, Miss Trauerman, failed to use ordinary care to perform any one or all of the foregoing duties, and that by reason thereof the car which she was driving left the driveway of said street, and ran partially or wholly upon the sidewalk, and struck and killed the decedent, James F. Oliver, while he was either standing or walking on said sidewalk, then^the defendant was guilty of negligence, and if the jury further believe from the evidence that such negligence was the proximate cause of the death of the defendant, they must find for the plaintiff.”
The complaint made of this instruction is that it undertakes to set out the whole law applicable to the case and is incomplete and erroneous, because of its failure to notice in some way the defendant’s theory that the accident was the result of an intervening cause over which she had no control. To meet and overcome this alleged objection, the defendant at the trial requested the court to amend the instruction by adding, just after the direction to find for the plaintiff, the following clause: “unless the jury shall believe
It is insisted, in the next place, that the court erred in giving plaintiff’s instruction No. 4,' as follows: “The court instructs the jury that even if they believe from the evidence that an automobile struck the defendant’s machine in passing, yet if they further believe from the evidence that at the time said machine was struck the defendant failed to have her car under reasonable control by not using her steering lever, brakes and current controller; or that at the time her machine was struck the defendant was exceeding eight miles per hour, or was driving at such a speed that her machine could not be promptly and quickly stopped under. the conditions of traffic existing at that time, even though said speed was less than eight miles per hour; and that the defendant’s failure to keep her machine under the control, or the speed at which she was going, efficiently contributed to the running of the defendant’s machine onto the
It is said that there was no evidence to support this instruction, the claim being that there is nothing in the case to indicate that a sufficient time elapsed after her car was assumed to have been struck by a passing automobile for her to recover the steering lever and prevent the injury.. It is quite true that the whole occurrence occupied only a few seconds, but there was evidence tending to show that if her car was-in fact struck by a passing automobile, it thereafter ran far enough to have been stopped by an ordinarily prudent driver before the injury was inflicted.
The remaining assignments of error, being necessarily controlled by the conclusions already announced, are overruled, and the judgment' is affirmed.
Affirmed.