Atlantic & Danville R. Co. v. Ironmonger

Buchanan, J., delivered the opinion of the court. The action of the court in overruling the demurrer to the declaration; in refusing to remove the case for trial to the Circuit Court for the county of Norfolk; and in refusing to give the instruction set out in bill of exceptions No. 6, are assigned as errors in the petition for this -writ of error. Since the writ was awarded, the case of the plaintiff in error against Francis Eieger, which arose out of the same collision or accident as did this case, has been decided. The same questions were raised, and decided in that case adversely to the plaintiff in error. Ante, p. 418. The record, so far as those assignments oí error are concerned, being substantially the same in both cases, that decision, it is conceded, controls the decision of this case as to them. They, [631] therefore, need not be further considered. Indeed they were abandoned in oral argument. The third assignment of error is to the action of the court in giving instruction Ho. 3, asked for by the defendant in error, and in refusing to modify that instruction by making an addition thereto, which is set out in bill of exceptions Ho. 1. The questions involved in this assignment of error were raised and decided in the Rieger case. In that case it was held that instruction Ho. 3 was erroneous, and the action of the court in giving it was one of the errors for which the judgment was reversed. It was further held that the addition to that instruction as asked for was properly refused. The facts of the two cases being substantially the same upon which that instruction and the addition were based, the decision in this case must be the same as in that, and for like reasons. The second error assigned is to the action of the court in giving instruction Ho. 2 asked for by the defendant in error', and which is as follows: “The court instructs the jury that if they believe for the evidence that the plaintiff had no control over the management of the team, and that the plaintiff and the driver, Francis Rieger, were each independent of control by the other, and that the defendant, The Atlantic & Danville Railway Company, was guilty of any negligence which contributed to the injuries to the said plaintiff, then the defendant, The Atlantic & Danville Railway Company, is liable to the said plaintiff, regardless of whether or not the driver, Francis Rieger, was guilty of any negligence.” Instruction Ho. 1, given by the court upon the motion of the defendant in error, was upon the same point, was a full and accurate statement of the law, and rendered unnecessary any further instruction upon that point. Instruction Ho. 2 was not only unnecessary, but it omitted the important qualification contained in the first instruction, viz: That whilst the negligence of Rieger, the driver, could not be imputed to her under the facts hypothetically stated in the instruction, still she could not re [632] cover, although injured by the negligence of the plaintiff in error, if she herself had been guilty of contributory negligence. Perhaps, when read in connection with instruction Ho. 1, given for the defendant in error, and instruction Ho. 5, given for the plaintiff in error, it may not have misled the jury, and as the judgment has to be reversed on other grounds, it is unnecessary to consider that question further than to say that if offered upon another trial upon a similar state of facts, it ought not to be given without the qualification referred to. The sixth assignment of error is based upon the refusal of the court to give the following instruction: “The court instructs the jury that the rule that the negligence of a driver of a vehicle is not to be imputed to a passenger is not applicable where the passenger is so located in the vehicle as to have an opportunity to discover the danger and to inform the driver of it, and if the jury believe from the evidence that the plaintiff was so situated in the carriage as, by the use of her senses of hearing or sight, she might have discovered the approaching danger in time to inform the driver of it, and for him to have avoided it and did not do so, then they must find for the defendant, unless they further believe from the evidence that the defendant might, after discovering the plaintiff’s negligence, have avoided its consequences.” This instruction assumes that the rule of law, that the negligence of the driver cannot be imputed to the passenger, is not applicable where the passenger is so located in the vehicle as to have an opportunity to discover the danger and inform the driver of it. Where the passenger, as in a case like this, is in the vehicle by the invitation of the owner and driver, and is exercising no control over him, the negligence of the driver cannot be imputed to the passenger. If the passenger has himself been guilty of negligence he is precluded from recovery by reason of his own negligence, and not because of the negligence of the driver. Upon the question of her own negligence, instruction Ho. 5, given for the plaintiff in error, stated the law as strongly in its [633] favor as it was entitled to. The court did not err in refusing to give the rejected instruction. The court, upon motion of the defendant in error, instructed the jury that in making up their verdict, if they found for her, they should, among other things, take into consideration “the expenses incidental to attempts to effect a cure, or to lessen the amount of injury and the pecuniary loss sustained by the plaintiff from inability to' attend to her business.” This instruction was objected to, but the objection was overruled, and this action of the court is the'fourth error assigned. The right of a married woman to recover damages, in a case like this, for expenses incurred about effecting a cure, or for loss of time, was carefully considered in the case of Richmond Rwy. &c. Co., v. Bowles, 92 Va. 738, and the conclusion reached that nothwithstanding the provisions of chapter 103 of the Code, the husband is still entitled to the services of his wife, and is bound for her support; and, in an action to recover damages for personal injuries to her, loss of time is not a proper element of damage, unless it be averred in the declaration and shown in the proof that she was a sole trader; nor are the costs of her cure, unless it be averred and proved that she paid such costs out of her separate estate. The record shows that the defendant in error was a married woman. There is neither allegation nor proof that she was a sole trader, or that the costs were paid out of, or that she had, separate estate. The court erred, therefore, in directing the jury to take into consideration these two items in making up the amount of their verdict. There was proof of loss of time and also of money paid for her cure. Under the instructions of the court the jury ought to have taken these items into consideration, and we cannot say, as counsel of defendant in error insists, that they did not do what they ought to have done, and that although the instruction was erroneous, it was harmless error. As the judgment must be reversed and the caus" remanded for [634] a new trial, upon other grounds, it is unnecessary to consider the assignment of error that the verdict of the jury was contrary to the law and the evidence. The judgment must he reversed and the cause remanded for a new trial to he had in accordance with the law, and the views expressed in this opinion. Reversed.