Virginia Railway & Power Co. v. Bailey

123 Va. 250 | Va. | 1918

Sims, J.,

after making the foregoing statement, delivered the opinion of the court.

In view of the character of the evidence on the pivotal and only point in the case on which it is contended by plaintiff that there is a conflict of evidence, we find it necessary to consider or pass upon only one of the assignments of error, and that is that there was error in the action of the trial court in refusing to set aside the verdict and grant a new trial, on the ground that the verdict was without evidence to support it.

We are of opinion that this assignment of error is well taken.

The cause .of action alleged in the declaration is the starting of the car while the plaintiff was in the act of alighting therefrom, and the consequent injuries to the plaintiff. It is not alleged that the plaintiff was thrown from the car by any act of negligence of the defendant in the stopping of the car;'and it was practically admitted in argument that the facts of the case were not such that the plaintiff could have amended her declaration to so charge and have recovered because of negligence of the defendant in the stopping of the car.

The case turns upon the question whether the testimony of the plaintiff was of sufficient probative value to support the verdict of the jury in finding that the car was again started after it stopped, and thus threw the plaintiff therefrom as she was in the act of alighting.

Of course, if the latter were the. fact, whether the movement of the car in starting was violent or not, would have been immateriál. It being unexpected would have been sufficient, osince it was the duty of the defendant to have given a reasonable time for its passenger or passengers to alight before starting it again after receiving the signal to stop, and after having stopped the car.

But the plaintiff’s testimony is fatally inconsistent with itself and with natural laws in its statement that she was thrown from the car by its starting forward after it had stopped, and yet that she was thrown “kind of forward.” The physical fact is, in the absence of explanation not furnished by the evidence in this case, that it was physically impossible for the plaintiff, to have been thrown forward from the cár by its forward jerk or movement. By such a movement of the car—by its starting after it had stopped— she would, in her position, so far as shown by her own testimoney, have been thrown backward instead of “kind of forward.” And the stopping of the car, as the plaintiff stepped down on the running-board (to use the plaintiff’s language) “the second the car stopped, just at the time it stopped * * * and as I (she) was in the act of taking this left foot down * * *” would, according to natural laws, have jerked and thrown her “kind of forward”—as she in fact fell, as she testified. It is true that she testified “it took my feet from under me and I fell on my back.” But she explained in her statement on cross-examination that she fell on her back because she was “kind of twisted around.” Hence, she did not testify that she was thrown “backward” by the movement of the car forward, as it is argued for plaintiff. And she did not testify that her feet were carried forward from under her, in advance of her body, from which the inference could follow that her body was thrown backward by the movement of the car, as must have been true according to natural laws from her own narrative of the occurrence,'if she had been thrown by a starting and not by a stopping of the car. On the contrary, her testimony that “When the car jerked, I was thrown this way (indicating), kind of forward,” is directly opposed to the inference that her feet were carried forward, and her body thrown backward, since we knew that if an object a person is standing upon is at rest and it is moved, the tendency is to carry the' feet forward and to throw the body of the person backward, and never forward, as the plaintiff testified she was thrown. She could not have been thrown forward by the starting of the car. The plaintiffs own testimony, therefore, when considered in the light of thé known operation of natural laws, shows that she was thrown by the stopping and not by the starting of the car. No other inference could be drawn from her testimony as true and in accord with natural laws.

It is well established that the statutory rule (section 3484, Code of Virginia), under which we must consider the evidence in the case before us, “cannot compel us to accept as true what in the nature of things could not have occurred in the manner and under the circumstances narrated.” N. & W. Ry. Co. v. Strickler, 118 Va. 153, 155, 86 S. E. 824, and Virginian Ry. Co. v. Bell, 113 Va. 492, 495, 87 S. E. 570, and authorities cited in these cases.

We are of opinion, therefore, that there is no evidence of probative value in the instant case that the plaintiff was thrown, as alleged, by the starting of the car while she was alighting therefrom; that the verdict of the jury is without evidence of sufficient probative value to support it on the pivotal question of fact aforesaid; and, hence, it must be set aside.

We should add that we do not mean to impute to the plaintiff an intentional departure from the truth. To use, in part, her own language, it is evident from her own testimony that, “the shock was so great” and she was “so nervous and excited” that she “just did not recall” precisely how the accident “happened.” Indeed, it is manifest from her own testimony that her statement that the car “had stopped” when she stepped on the running-board is coupled with the statement that her act of stepping on the running-board occurred “the minute—the second it (the car) stopped;” so that it is apparent that when she said the car had stopped before she was thrown, she was testifying to an opinion of hers afterwards formed as to’ the time of the stopping of the car in relation to her own act aforesaid, and not to a recollection of a fact which occurred at the time. Her testimony is, in truth, not that this was a fact, although at times * put by her in that form. • According to her own statement, . as the incident in fact occurred, there was no interval of time between her own action aforesaid and the stopping of the car; they both occurred simultaneously. •

For the foregoing reasons, we are of opinion to reverse the case and grant to the defendant a new trial, which will be accordingly done.

Reversed.