Roanoke Railway & Electric Co. v. Young

Keith, P., delivered the opinion of the court. This suit was instituted by T. G. Young, to recover damages from the Roanoke Railway and Electric Company for personal injuries, and resulted in a verdict and judgment in his favor which, upon exceptions taken at the trial, is now before us upon the petition of the railway company. The first error assigned is that the court erred in overruling the defendant’s motion to set aside the verdict as contrary to the law and the evidence; the second, that the court erred in giving instructions asked for by defendant in error; and, third, that the court erred in refusing to permit a witness, O. I. Hart, to read to the jury the stenographic notes of the testimony of A. C. Rucker at the former trial, it being shown that the said A. C. Rucker was dead. We shall first dispose of the last assignment of error. The petitioner sought to prove what A. C. Rucker, deceased, had testified to at a former trial by O. I. Hart, the stenographer who reported the case on that occasion. Hart produced his original notes of the testimony, which were taken down by him as the witness testified, and was asked if he knew, either from [787] having refreshed his recollection by going over the notes, or from his general usage and practice in taking down accurately the testimony of a witness as he testifies, that these notes were a correct momorandum of the testimony of Mr. Rucker, as he gave it on the stand. This question was answered in the affirmative, and the witness was asked to read his notes to the jury, to which defendant in error objected, and the court sustained the objection; the court being of opinion that the witness could only use his notes for the purpose of refreshing his memory, and that he must then speak from a present recollection refreshed by the notes of the testimony. It appears that the testimony was introduced in accordance with the ruling of the trial court, and that the petitioner was therefore not prejudiced by the ruling of the court, by his own admission, but merely desires now to have the opinion of this court as to the proper practice in such cases. This court has uniformly declined to pass upon a moot question. We think it safer to wait until the question is presented in a form that renders its decision necessary to a proper disposition of the case. The facts disclosed by the evidence are as follows: On the 5th of April, 1906, T. G. Young was injured in a collision with a ear of the railway company at the corner of Jefferson street and Church avenue, in the city of Roanoke. The collision occurred about seven o’clock in the morning, between a car running north on Jefferson street and a one-horse dray, or market wagon, driven by Young, going west on Ohurch. avenue. At the point where the accident occurred, Jefferson street is forty feet wide from curb to curb, and Ohurch avenue is thirty feet wide from curb to curb. Jefferson street, at this point, slopes to the north at a grade of about one and one-half degrees. The car was proceeding north down this grade, and had stopped to take on or let off passengers at the avenue immediately south of Church avenue. Young was driving west along Ohurch avenue in a trot, but before reaching the crossing he checked his [788] horse, looked up the street and saw the car coming. Thinking that he had time to cross the track safely in front of the car, Young’ urged his horse forward and attempted to cross. The motorman, seeing the driver .check his horse assumed that he would not attempt to cross in front of the car, and made no attempt to stop or cheek its speed.. Young testifies that when he urged his horse forward to cross the track, the car was something like seventy-five yards distant. The evidence tends to show that the car was moving at the rate of about twenty or twenty-five miles an hour, and defendant in error states in his evidence that he would have had plenty of time to cross if the car had been going at a proper rate of speed. The car seems to have struck the hind wheel of the wagon near the centre of hub of the wheel. That the car was moving at quite a rapid rate is further shown by the fact that after the collision the wagon was carried a distance of between forty and fifty feet, and the car moved nearly half a block with its brakes applied. AVithout doubt, the driver of the wagon saw the car. It is equally certain that the motorman of the car saw or could have seen the driver. It may be conceded that the driver was guilty of negligence in taking the chance of being able to cross the street in front of a rapidly-approaching car; and the question upon which the decision of the case depends is, whether or not, after the motorman saw, or should have seen, the position of danger in which the defendant in error had voluntarily placed himself, he could, by the exercise of ordinary care on his part, have avoided, the injury. AVe think there was evidence proving, or tending to prove, all the facts upon which the instructions given by the court were predicated, and are of opinion that those instructions correctly propounded the law. AVe have, then, only to determine whether the verdict is contrary to the evidence, and upon that issue we cannot say that the verdict of the jury is so plainly without evidence, or so contrary to the weight of the evidence, as to warrant us in disturbing a verdict which has received the sanction of the trial court. [789] The ease is controlled, we think, by Carrington v. Ficklin, 32 Gratt. 670; Kimball & Fink v. Friend’s Admr., 95 Va. 125, 27 S. E. 901; and Marshall v. Valley R. Co., 97 Va. 653, 34 S. E. 455; and cases of like character, in which this court has held, that “When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of these conclusions has been drawn by the jury. The inference to be drawn from the evidence must be either certain and incontrovertible, or it cannot be decided by the court. Negligence cannot be conclusively established by a state of facts upon which fair-minded men will differ.” See also Richmond Traction Co. v. Clarke, 101 Va. 382, 43 S. E. 618, where the court said: “A plaintiff, even though a trespasser, may recover of a railway company for an injury inflicted upon him, notwithstanding his own negligence may have exposed him to the risk of injury, if the company, after it became aware of the plaintiff’s danger, could, by the use of ordinary care, have avoided injuring him, and failed to do so.” We are of opinion that there is no error in the rulings complained of, and the judgment is affirmed. Affirmed.