119 Va. 326 | Va. | 1916
delivered the opinion of the court.
This action was brought to recover damages for the death of W. E. Winstead, which was alleged to have resulted from the negligence of the defendant, Virginia Railway and Power Company. There was a verdict for the plaintiff, and a judgment thereon which is the subject of the present inquiry.
The defendant company operates a street railway system in the city of Norfolk. On the night of the accident one of its cars, which was running eastwardly on Brown avenue, stopped at a street crossing, and, renewing its journey eastwardly, had proceeded fifteen or twenty feet beyond the crossing when the motorman and two passengers standing on the front platform saw laying by the track, some forty of fifty feet ahead, an object which appeard to be a piece of paper or some old trash. When within a distance variously estimated by the witnesses at from eight to twenty feet of the object, they discovered that it was a man, and the mo.torm.an then made the best stop he could,
The car was equipped with two headlights, one an incandescent and the other an are lamp, which were shown to be. of standard make and in general use in Norfolk and other cities. There was no evidence to show that these lights were not adjusted and burning in the usual manner. That portion of Brown avenue on which the accident occurred was poorly lighted, and comparatively speaking was quite dark. There was a city arc light at the street crossing mentioned above, but its effect was interfered with by shadows from intervening trees. Such further facts as are material will appear in connection with our discussion of the charges of negligence upon which the plaintiff below based his claim for a recovery.
The first of these charges is that the defendant company failed to have a proper headlight, properly adjusted, on the car. There is, we think, no difficulty with this branch of the case. “An essential ingredient of any conception of negligence is that it involves the violation of a legal duty, which one person owes to another—the duty to take care for the safety of the person or property of the other; and the converse proposition is that, where there is no legal duty to exercise care, there can be no actionable negligence.” 1 Thompson on Neg., sec. 3, p. 4; 2 Elliott on Roads and Streets, sec. 1138 and notes; Id., sec. 1139. There are authorities which seem to hold that independent of statute or municipal ordinance, no duty rests upon street railway companies to provide lights or signals
To run a street car without lights, or to run it with lights but with no lookout for persons on the street, would, of course, be evidence of wanton and wilful negligence, for which even a trespasser might maintain an action; but that is not this case.
In the present case the evidence leaves no room for reasonable men to differ upon the statement that if Winstead (or any other man or child) had been standing, or walking, on of near the track where he was struck, or making any other legitimate and customary use of the street at that point, the headlights would have been entirely sufficient to disclose the fact from the point at which the object was first seen, and in ample time for the accident to have been averted. Lying as he was, however, wholly outside of the rails, he at first sight presented the appearance of a piece of paper or a bundle of trash, threatening no harm to the car or its occupants, and suggesting no probability of harm or damage to it from the car. The evidence shows that the motorman was looking ahead and would have seen a man using the track in the usual way in time to have done whatever prudence might have dictated for his protection, and that after the car was close enough to disclose the probability that
In the Dunnaway Case the fact is emphasized that the railway company had the exclusive right to the uninterrupted enjoyment of their tracks at the point of the accident. In this case the defendant company did not have any such exclusive right, but it did have a superior right between crossings, even as to the customary and proper use of the street by others (36 Cye. 1491, and cases cited in note 96; 2 Elliott on Roads and Streets, sec. 961); and it requires no argument or authority to show that no one has any right to use the streets on or off of the track as a sleeping place. When he does so he becomes a wrongdoer against the entire public, and he surrenders his relation and rights as a traveler on the street. As illustrative of this principle see Lile’s Notes on Mun. Corp. (3rd ed.), pp. 60-61, and cases cited.
The next charge of negligence as contained in the declaration was that the defendant company failed to keep a proper lookout for persons who might be upon its tracks. There was no proof to sustain this charge —in fact, it was affirmatively disproved—and the court properly instructed the jury to disregard it.
The only remaining allegation of negligence' was that the car was allowed to be overcrowded so that it could not be as easily controlled as if it had been carrying a reasonable load of passengers. The evidence offered to support this charge was the statement of one witness that the car “was crowded,” and of another that the seating capacity of the car was thirty-six, the total
There were other questions raised in this case, but they are incidental and subordinate to those which we have discussed and which, in our opinion, must control the case unless upon a new trial the evidence should be materially different from that now before us.
The motion to set aside the verdict should have prevailed, and the judgment must be reversed and the cause remanded for a new trial, to be had, if plaintiff shall be so advised, in conformity with the views herein expressed.
Reversed.