Chesapeake Ferry Co. v. Cummings

Hudgins, J., delivered the opinion of the court. This action, instituted by a notice of motion, is to recover damages from the Chesapeake Ferry Company for an injury causing the death of James C. Cummings. There was a verdict and judgment of $7,500.00 in behalf of the plaintiff, from which the defendant obtained a writ of error. The defendant, the Chesapeake Ferry Company, owns and operates a ferry for the transportation of passengers and vehicles across Hampton Roads between Newport News and Pine Beach. The Chesapeake is one of the vessels used in this service. About four o’clock on the afternoon of September 24, 1929, this boat was in the slip at Newport News, prepared to take on passengers en route to Pine Beach and Norfolk. The first vehicle to come on board was a Hupmobile sedan, driven by James C. Cummings, plaintiff’s intestate, which took the port or left hand vehicle gangway, and proceeded to within a few feet of a chain barrier, where it stopped. A deck hand, the only employee stationed at that end of the boat, motioned Mr. Cummings forward. Thereupon he started his automobile, which moved up to and through the chain barrier, some fifteen feet along the gangway, and overboard from the eastern end of the boat. Both Mr. Cummings and his wife, who were the occupants of the Hupmobile, were drowned. — 36 — Separate actions were instituted and separate judgments obtained by the administrators of Mr. and Mrs. Cummings. We refused a writ of error in the case of Mrs. Cummings’ administrator. The allegations, defense, evidence and instructions were substantially the same in both cases, and the only issue not decided by the refusal of the other writ was whether Mr. Cummings was guilty of contributory negligence, and, if so, did such negligence concur with the negligence of the defendant in causing his death. The defendant is a common carrier and the Virginia decisions have held repeatedly that such a carrier owes to its passengers the duty to use the highest degree of care for their safety known to human prudence and foresight, and is liable for the slightest negligence against which human care and foresight may guard. Norfolk-Southern R. Co. v. Tomlinson, 116 Va. 153, 81 S. E. 89; Riggsby v. Tritton, 143 Va. 903, 129 S. E. 493, 45 A. L. R. 280; C. & O. Ry. Co. v. Baker, 149 Va. 549, 140 S. E. 648, 141 S. E. 753; Id., 150 Va. 647, 143 S. E. 299. This high degree of care which the defendant owes its passengers was recognized and fairly stated in instruction H, which the court gave at its request: “The defendant was not an insurer of the safety of Mr. Cummings, but was bound to exercise the highest degree of care that prudence and foresight would demonstrate the necessity of for decedent’s safe transportation, and the criterion for ascertaining whether it has fulfilled its duty with respect to the barriers in use on the Chesapeake is whether these articles of her equipment were such as a reasonably prudent person would have used in the same or similar circumstances. • “If, therefore, you believe from the evidence that they were of this character, and that the equipment was in good order and condition and of sufficient strength to afford reasonable protection to property and passengers while — 37 — they themselves were in the exercise of reasonable care; and that the defendant exercised every other care in the management and operation of that vessel which the highest degree of prudence and foresight could show was necessary for the safety of decedent, then the plaintiff is not entitled to recover and your verdict should be for the defendant.” The jury, under this and other instructions, found the defendant was negligent. The defendant contends that even if it was negligent the plaintiff’s intestate was negligent also, and his negligence was a contributing cause to the fatal injury. The burden was on the defendant to prove contributory negligence, and it contends that it has borne this burden by showing: (1) that the brakes on the car were worn and would not function; (2) that the driver was inexperienced and incompetent; (3) that there was ample room to stop the car both before and after reaching the chain barrier. The evidence on these points, to the extent deemed material, will be discussed in the order stated. (1) The testimony on the condition of the brakes was in conflict and the verdict of the jury settles this issue. (2) The only testimony which even tends to show the ability of the driver was that of his son, which is vague and indefinite. The son stated that his father had been driving his car ever since he, the son, had been at work. Just how long the son had been at work previous to the accident does not appear. This testimony, while not contradicted, is not conclusive. (3) The defendant, in its petition and in its oral argument, stated that the plaintiff’s intestate drove on the boat, through the gangway to the forward end of the passenger cabin, which was some twenty-one feet aft of the chain barrier; that there he came to a stop and made some inquiry of the deckhand, and without waiting for a reply to this inquiry or instructions from any one he started the — 38 — engine of his car and proceeded with such force as to run over the chock laid on the deck by the deckhand and into the chain, and after breaking that continued a distance of some eighteen feet before he ran overboard, his engine still running as it went over; and that there was ample space for him to have stopped his car after thus starting before he reached the chain, and room to stop between the chain and the end of the gangway. The above statement entirely ignores the evidence introduced by the plaintiff which tends to show that the plaintiff’s intestate drove his car to within eight or ten feet of the chain (not twenty-one feet) before stopping; that he said something to the deck hand, “asked him if he was far enough;” that the deck hand did not hear him and said: “Sir?” and Mr. Cummings repeated the question. The witness, Wilson, did not hear what the deck hand said but saw him motion to Mr. Cummings to move his car forward. This witness, who was the driver of the car immediately following the Cummings car, then started his motor in order to keep close behind the Cummings car. Another witness, who was the driver of a car further behind and who had stopped and gotten out to talk to Mr. Wilson, saw the motion of the deck hand signalling Mr. Cummings to come forward, and on seeing this signal went back to his own car for the purpose of moving it forward in line. Both of these witnesses stated that the deck hand had no chocks in his hand, that none were in place in front of the Cummings car, and that, in their opinion, if chocks had been used to aid the resistance of the chain barrier the motor of the Cummings car would have stalled and the injury avoided. The witnesses for the defendant estimate the distance between where the Cummings car stopped and the edge of the gangway-as approximately forty-one feet; the witnesses for the plaintiff estimate this distance as from twenty39 five to twenty-eight feet. The witnesses for the defendant estimate the speed that the car was going when it struck the chair barrier as from ten to fifteen miles an hour; the witnesses for the plaintiff estimate this speed as less than five miles an hour. The plaintiff’s witnesses testified that the chain barrier made only a very small dent where it came in contact with the radiator of the car; the defendant’s witnesses admit that there is a very slight dent in the radiator, but contend that this was made in pulling the car from the water and not from striking the chain barrier. The jury inspected the radiator with the indentation therein. The court, at the request of the defendant, gave five instructions, lettered A, B, C, D and E, on contributory negligence. If subject to any criticism, they place the defendant before the jury in too favorable a light, unless it can be said that as a matter of law the plaintiff’s intestate was guilty of negligence. Considering the conflict in evidence as settled by the verdict of the jury, this conclusion can be reached only from the fact that the plaintiff’s intestate failed to stop his car within some twenty-eight feet after he started forward in obedience to a signal from the deck hand. While the plaintiff’s intestate was the owner and driver of the car, supervision of its movements and parking on the boat was in the defendant. This is not a case in which the driver proceeded on the boat and along the gangway, through the barrier, at a reckless rate of speed, nor one in which the driver disregarded the directions of the signalman, but here the driver brought his car to a stop in a place of safety and then, pursuant to directions of a servant of the defendant, in good faith attempted to obey the defendant’s orders. The defendant was charged with knowledge that animals and automobiles may not, at all times, be under adequate control. Shepard v. Reed (C. C. A.), 26 Fed. (2d) — 40 — 19; Sparkman v. Graham, 79 Miss. 376, 30 So. 713; Wilson v. Alexander, 115 Tenn. 125, 88 S. W. 935; Meisle v. N. Y. Central, etc., R. R. Co., 219 N. Y. 317, 114 N. E. 347, Ann Cas. 1918E, 1081. “In the hands of a nervous or unskilled chauffeur an automobile might be awkwardly stopped or started and thus driven off the boat if no proper barriers were interposed. 'It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.’ ” Meisle v. N. Y. Central, etc., R. R. Co., supra; Munsey v. Webb, 231 U. S. 150, 34 S. Ct. 44, 58 L. Ed. 162; Condran v. Park, 213 N. Y. 341, 107 N. E. 565. In the exercise of due care for the safety of its passengers, it was the defendant’s duty to take into consideration such a contingency and provide proper safeguards to prevent any injury which might result therefrom. The evidence for the plaintiff shows that when the car reached the chain barrier its forward motion was checked; when the chain was seen to part there was a slight lurch forward; as it passed the collapsible gate, intended as a barrier for passengers, the driver threw out his hand in a vain attempt to grasp it; the front wheels dropped over the end of the boat, the car hung in a balance, the chassis resting on the end of the boat with the rear wheels clear of the deck, and after a few seconds the weight of the engine overbalanced the car and it plunged into the water. Suppose it is admitted that an ordinarily careful driver, driving a • properly equipped car in good working order, at a speed of five miles an hour, can by the exercise of ordinary care stop it in twenty-eight feet, that this was net d'one and the plaintiff’s intestate was negligent in failing so to do. Does that fact relieve the defendant from liability? In other words, was this act, or rather failure — 41 — to act, on the part of the plaintiff’s intestate a proximate or contributing cause of the accident? Much has been written on this subject. In each case, however, the object of the inquiry is to fix upon the wrongdoer the responsibility for the wrongful act which caused the damage. In this case the defendant directed the plaintiff’s intestate to move from a point of safety toward danger; the car proceeded slowly by the deck hand against the chain barrier, the chain gave way, death ensued. No chocks were in place or attempted to be used by the deck hand; the defendant relied wholly upon the strength of the chain barrier to stop the car in the event that should become necessary. We have held that the evidence warranted the jury in finding the defendant negligent. The jury concluded that the defendant had either failed to provide proper barriers and appliances, or had failed to use those provided. The previous negligence of the defendant had thus incapacitated it from avoiding the consequence of the act of the plaintiff’s intestate, which it was its duty to have anticipated. The defendant owes an abstract duty to provide the proper safeguards to prevent cars from going overboard. Upon an emergency arising, the abstract duty becomes a concrete duty, in this case specifically owing to the plaintiff’s intestate. Had the abstract duty been performed by having available and in place the proper safeguards, no injury would have resulted from the act of the plaintiff’s intestate. The jury having found the defendant negligent in this particular, this negligence was the sole proximate cause of the death of the plaintiff’s intestate. This principle finds support in the following cases: “ ‘The negligence that produced such a state of disability is not merely part of the inducing causes—a remote cause or a cause merely sine qua non—it is, in very truth, the efficient, the proximate, the decisive cause of the incapacity, and therefore of the mischief * * *. — 42 — Negligence of a defendant incapacitating him. from taking due care to avoid the consequences of the plaintiff’s negligence, may, in some cases, though anterior in point of time to the plaintiff’s negligence, constitute “ultimate” negligence, rendering the defendant liable notwithstanding a finding of contributory negligence of the plaintiff * * *.’ “The principle that the contributory negligence of a plaintiff will not disentitle him to recover damages if the defendant, by the exercise of care might have avoided the result of that negligence, applies where the defendant, although not committing any negligent act subsequently to the plaintiff’s negligence, has incapacitated himself by his previous negligence from exercising such care as would have avoided the result of the plaintiff’s negligence.” British Columbia Electric Railway v. Loach (1916), 1 A. C. 719. “In all cases of damage by collision on land or sea, there are three ways in which the question of contributory negligence may arise. A. is suing for damage thereby received. He was negligent, but his negligence had brought about a state of things in which there would have been no damage if B. had not been subsequently and severably negligent. A. recovers in full * * *. “In some cases there may have been negligence on the part of a plaintiff remotely connected with the accident; and in these cases the question arises, whether the defendant by the exercise of ordinary care and skill might have avoided the accident, notwithstanding the negligence of the plaintiff, as in the often-quoted Donkey case: Davies v. Mann. (1) There, although without the negligence of the plaintiff the accident could not have happened, the negligence is not supposed to have contributed to the accident within the rule upon this subject; and, if the accident might have been avoided by the exercise of ordinary care and skill on the part of the defendant, to his gross negligence it is entirely ascribed, he and he only proximately causing the loss.” S. S. Volute (1922) 1 A. C. 129. — 43 — " 'The true rule is that the injury must be the natural and probable consequence of the negligence—such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer, and likely to flow from his act.’ West Mahanoy Twp. v. Watson, 112 Pa. 574, 3 Atl. 866, 56 Am. Rep. 336. To the same effect is Behling v. Southwest Pennsylvania Pipe Lines, 160 Pa. 359, 28 Atl. 777, 40 Am. St. Rep. 724. And so all the cases cited on both sides, either expressly or by implication, rule * * *. Here was an independent, intermediate cause or omission of duty, without which, notwithstanding the primary cause, the injury would not have been suffered. And the jury, on sufficient evidence, have found defendant was negligent in maintaining a defective guard rail at that point. Says Appleton, Ch. J., in Moulton v. Sanford, 51 Me. 134: 'Ordinarily, that condition is usually termed the "cause” whose share in the matter is the most conspicuous, and is the most immediately preceding and proximate in the event.’ ” Sturgis v. Kountz, 165 Pa. 358, 30 Atl. 976, 979, 27 L. R. A. 391. See, also, Virginia Ry. & Power Co. v. Taylor, 144 Va. 496, 132 S. E. 334; Richmond Traction Co. v. Martin, 102 Va. 212, 45 S. E. 886. The line which separates accidents for which the defendant is not liable from accidents creating responsibility by' reason of negligence is often narrow and difficult to be drawn, and it is well not to draw the line dogmatically. Meisle v. N. Y. Central, etc., R. R. Co., supra. From the evidence, reasonable men may differ in their conclusions. The verdict of the jury has the approval of the trial judge. We find no reversible error, and therefore affirm the judgment. A-ffirmed.