117 Va. 862 | Va. | 1915
delivered the opinion of the court.
This action was brought by Charles McDemmick to recover of the Virginia Railway and Power Company damages for injuries alleged to have been sustained by him while a passenger on one of the defendant’s electric cars. There was a verdict and judgment for the plaintiff, to which this writ of error was awarded.
The facts and circumstances attending the injury of which the plaintiff complains are as follows: The defendant company owns and operates an electric car line in the city of Norfolk, its cars traversing, among others, Granby street and Bute street. Granby street runs approximately north and south, while Bute street runs east and west, intersecting Granby street at right angles. The cars of the defendant are operated on Granby street on two tracks. Upon the track on the east side of this street the cars run north, and upon that on the west side south. On October 31, 1913, one of the defendant’s cars was moving in a northerly direction on the east track in Granby street, running towards its intersection with Bute street, and about three blocks south of Bute street the car was stopped and a negro man, who had been drinking and apparently was somewhat intoxicated, boarded it. As the car approached a point about a block from Bute street, this negro man, having entered the car and taken a seat, lighted a cigar and commenced smoking; whereupon, the
There is some conflict in the evidence as to the whereabouts of the conductor at the time the plaintiff was thus injured, the conductor testifying that he knew nothing of the plaintiff’s injuries until, after replacing the trolley on the wire, he boarded the car and with the assistance of
Davis, testifying for the plaintiff, stated: “He (meaning the conductor) got to Bute street and the trolley comes off. This negro still stands there. I was standing in the corner and he (conductor) shoved him over to me.
“Q. Did the conductor say anything to you when the negro was backing to the door? A. He told me to keep him on the car until he could get the trolley on, until someone could take him off the car.
“Q. By a Juror: When was the first time the conductor asked you not to let the negro get off? A. When he started to put the trolley on. He was opening the door and shoved him over, and told me to keep him on the car until he could see/an officer.” .
All of this occurred, as mentioned when the plaintiff had not boarded the car, and Davis fixes the time when he did board it as being after the fight between him and the negro had begun, and states how it originated, saying: “I was standing in the corner and he shoved him over to me. He (the negro) tramped over my feet and I pushed him in the corner (on the far side of the platform) and he made a pass at me, and there was a couple of licks passed. Mr. McDemmick (plaintiff) got on the car. As far as seeing the conductor rub up against him, I did not see that part. This negro did kick at me or the conductor, I don’t know which he kicked at, but I know that he kicked at one of us, and I was looking* out for myself, and was not thinking of nobody else.”
It ■ appears, therefore, that when plaintiff got on the platform of the car it was standing on the curve by reason of the trolley having jumped the wire and necessarily he entered the car when the conductor opened the outer door to get out for the purpose of replacing the trolley and to summon an officer or aid to take charge of the negro, for
In the foregoing statement we have not attempted to do more than state the material facts which the evidence proved or tended to prove, to show the character of the case submitted to the jury. As has been observed, there is a conflict in the evidence, which presents opposite theories of the case, the one supported by the testimony for the plaintiff, and the other supported by the testimony for the defendant.
At the instance of the plaintiff the court gave six instructions presenting to the jury his theory of the case, but refused an instruction asked by the defendant propounding the principles of law appertaining to its theory of the case, which instruction read as follows:
“The court instructs the jury that if you believe from the evidence that the injury, if any, to the plaintiff was unexpected and inflicted at a time when the servants of the defendant were unable to protect him therefrom, you must find for the defendant.”
It cannot be maintained that the purport of this instruction was contained in other instructions given in the case. The purpose of this instruction wras to present for the consideration of the jury the defendant’s theory that it could not be held liable for the injury to the plaintiff which he alleges to have been proximately caused by the negligence of the defendant’s conductor, because the injury occurred as a result of an entirely sudden and unexpected affray, occurring without warning and without an opportunity being offered to the defendant’s servants to protect the plaintiff.
. In numerous cases decided by this court it has been ruled that where there is a conflict in the evidence, and where there are two conflicting theories of the case, one supported by the plaintiff and the other by the defendant, and where the theory of one party has been fully presented to the jury, then the other party is entitled to an instruction fully propounding the principles of law applicable to his theory, if there be evidence tending to sustain it.
In Richmond Traction Co. v. Martin’s Admr., 102 Va. 209, 45 S. E. 886, the opinion of the court by Whittle, J., says, that “where two theories of a case are presented by the evidence, upon one of which the jury has sufficient instruction, it is error to refuse an instruction based upon the other theory of the case, which, if sustained, would require a - different verdict, or to add to such an instruction a qualification which would withdraw from the jury the consideration of the last mentioned theory.” See also Adamson’s Adm’r. v. N. & P. Trac. Co., 111 Va., 556, 69 S. E. 1055, and cases there cited.
• We have adverted to the evidence in this case sufficiently to show, as we view it, that there was nothing in the conduct of the negro passenger while inside the car
The theory of the defendant, propounded in its instruction above set out, was not only that the injury to the plaintiff occurred as a result of an entirely' sudden and unexpected affray, etc., but that it was guilty of no negligence which was the proximate, direct and efficient cause of the injury. While carriers of passengers for hire aré held to the highest degree of care and diligence in guarding their safety, and the slightest imputation of negligence against which human care and skill can provide will make them responsible for any defect of machinery, or for any negligence on the part of their servants, to warrant a recovery for an injury to a passenger, the negligence complained of must stand as the proximate cause of the injury sustained—that is, it must be the direct and efficient cause of the injury. Under no circumstances is a carrier of passengers held as an insurer of their safety. Connell v. Ches. & Ohio Ry. Co., 93 Va. 44, 24 S. E. 467, 32 L. R. A. 792, 57 Am. St. Rep. 786.
The opinion by Keith, P., in the case cited, reviews a large number of the decided cases, among them the case
■ In the case at bar, as we have seen, up to the time that it became necessary for the conductor to replace the trolley of his car, nothing had occurred in the conduct of the negro passenger from which the conductor could have expected to actually hold ■ him for the safety of the passengers in the car. To have done so would have been not only apparently unnecessary, but would have prevented the conductor from replacing the trolley so that his car could be removed from its position blocking the Granby street car tracks, upon which local traffic was moving and an express train due and momentarily expected. It is not denied that the plaintiff boarded the car as the conductor got off and replaced the trolley, it being necessary for him to get on the ground to replace it, as the car was standing on a curve and there was evidence tending to prove that the injury to the plaintiff by the kick from the negro was received by him in but a moment of time after he had gotten on the platform of the car where the fight between the negro and Davis was on, and that there was no time at which the conductor could have prevented the injury to the plaintiff. The conductor testified that he could not
Under the instructions upon which the case was submitted to the jury, they were warranted in finding for the plaintiff, although they might have believed from the evidence that the injury to the plaintiff was unexpected and inflicted at a time when the servants of the defendant were unable to protect the plaintiff. The instruction asked by the defendant and refused by the court submitted that theory of the case to the jury, propounding a correct principle of law applicable thereto which theory of the case was not submitted for the jury’s consideration by any other instruction given, and there being evidence upon which to base the instruction, it was error .to refuse it.
As the judgment of the circuit court has to be reversed because of the error in refusing defendant’s said instruction, it becomes unnecessary to consider the remaining assignment of error which is to the' ruling of the court in refusing to set aside the verdict of the jury because contrary to the law and the evidence.
The judgment of the circuit court is reversed,.the verdict of the jury set aside, and the cause remanded for a new trial to be had therein not inconsistent with this opinion.
Reversed.