124 Va. 452 | Va. | 1919
delivered the opinion of the court.
Defendant in error, Arthur C. Warner, brought this action under the federal employer’s liability act (Act Cong. April 22, 1908, C 149, 35 Stat. 65 [U. S. Comp. St. secs. 8657-8665]), against the plaintiff in error, the Washington and Old Dominion Railway, to recover damages for personal injuries suffered by him while a motorman on one of defendant’s cars in collision with another car, the' property of defendant, which he alleges was due to the defendant’s negligence. The jury returned a verdict for plaintiff, upon which the judgment under review was rendered.
In outline, the situation out of which the litigation arose is as follows:
Defendant owns and operates an electric double track trolley line of railway from its eastern terminus at 36th and M streets, N. W., in the city of Washington, District of Columbia, extending in a southerly and westerly direction to Great Falls, on the Potomac river in Fairfax county, Virginia and beyond. Cars leaving Washington destined
An extra, unscheduled car, No. 72, on the day of the accident, was destined to Cherry Dale, a stop on the westbound track several miles east of Great Falls. On reaching Cherry Dale it had to discharge its passengers and proceed thence westwardly a few hundred feet to a switch, or crossover, and to pass over the same to the eastbound track and return to Washington.
On October 26, 1915, plaintiff left Washington at 3:30 p. m., in car No. 4, destined for Great Falls, without being informed and without knowing that the unscheduled car, No. 72, had been sent out on the same track just two minutes ahead of it, in violation of the rule of the company which required that all cars running in front of a regular scheduled car should have a clearance of ten minutes. The evidence in support of the opposing theories as to the cause and manner of the collision is irreconcilably conflicting. On behalf of the plaintiff it tends to show that when No. 4 reached Cherry Dale and had discharged its passengers, it proceeded on its way at the rate of ten or twelve miles an hour; that the first intimation plaintiff had. of the presence of No. 72 on the track ahead of him was when, in about one hundred and fifty feet of the cross-over, he discovered the car some fifty feet west of that point; that it was approaching him at the rate of fifteen or twenty miles an hour, that the collision occurred about one minute after he left Cherry Dale; that No. 72 gave no notice of its presence on the track either by whistle, bell or gong, and did not send back a flagman to give warning; that from his seat on the stool in the middle of the front vestibule of the car he could not see the cross-over from Cherry Dale. When he came in sight of No. 72 he did all in his power to stop his car and avoid a collision; he tried to reverse, but that
The testimony of the defendant was diametrically opposed to that of plaintiff. It was said that No. 4 ran down upon No. 72 while plaintiff was sitting on his stool with his head hanging down and all that could be seen was his cap; that his face was not visible; that when he had approached to within twenty-five or thirty feet of No. 72, the motorman, whose car was then partly on the cross-over, yelled at him and blew the whistle, but he gave no heed to either signal and did not move; that he made no effort whatever to stop his car, which at the speed he was going, eight or ten miles an hour, could have been stopped without using air in time to prevent the collision.
As was said by Keith, P., in delivering the opinion of the court in Southern Ry. Co. v. Aldridge, 101 Va. 142, 149, 48 S. E. 333, 335; “We are aware, of course, that the evidence with respect to many of these facts is strongly controverted. It may be conceded that the weight of evidence is with the plaintiff in error as to some of them, but that avails nothing under the rule governing demurrers to evidence.” Following that rule, we must hold that the negligence of the defendant, as charged in both counts of the
It only remains to inquire whether the trial court has committed error of law which demands the reversal of its judgment.
' [2] The first assignment of error is to the action of the court in overruling the demurrer. There were two counts in the declaration. The crux of the first count is, that defendant’s train dispatcher negligently caused plaintiff to run his passenger motor car into another passenger car of the defendant by ordering plaintiff to take his car out on the westbound track without informing him that two minutes previously, in violation of a rule of the company, he had sent another car out over the same track.
We are of opinion that this count states a good cause of action. Va. & S. W. Ry. Co. v. Clowers, 102 Va. 867, 47 S. E. 1003; Gregory’s Forms, No. 119.
The second count charges that the servants of defendant in charge of the extra car negligently collided with the car operated by plaintiff and inflicted upon him the injuries for which he sues.
The grounds of demurrer to the second count are:
“1. That said count does not state the time, place or circumstances under which the collision occurred; and
“2. That plaintiff assumed the risk of the accident of which he complains and is not entitled to recover.”
The third, fourth, sixth, seventh and eighth assignments draw in question rulings of the court with respect to the admission and exclusion of evidence.
The eighth assignment relates to the refusal of the court to sign a bill of exceptions. That also involved objection to a ruling with respect to a question, the answer to which was not given.
The tenth and eleventh assignments have been sufficiently discussed to show that they present no reversible grounds of error. The first is an omnibus assignment covering objections already disposed of, and the last is to the refusal of the court to set aside the verdict as contrary to the law and evidence.
For the reasons given, we are of opinion that the judgment of the circuit court should be affirmed.
Affirmed.