Norfolk & Atlantic Terminal Co. v. Morris' Administratrix

1. Evidence—Order of Examination—Discretion of Trial Court—Appeal and Error.—The order in which evidence is introduced is a matter largely in the discretion of the trial court for which this court will not reverse a judgment save in very exceptional cases. It will not reverse merely because a witness is allowed to answer a question on cross-examination which might more properly have been introduced in rebuttal. 2. Street Railways—Passengers—Negligence—Starting Car.—A person intending to enter a street car which has stopped for passengers,' and,who endeavors to enter the same while it is standing, is a passenger under the care of the street car company, and if, in endeavoring to enter the car, in the exercise of such care as might reasonably be expected of one of his age under the circumstances, he is thrown from the car and injured by the negligent starting of •the car, the company is liable. 3. Street Railways—Negligence—Prematurely Starting Car—Passenger. It is the duty of a street car company, when its cars have stopped for passengers, to use the highest degree of care to see that all passengers lawfully entering its cars are in a place of safety thereon before starting, and if a passenger is injured from the consequence of starting the car at a time when, by the exercise of such care, it was known or might have been known to the servant of the company that he had not reached a place of safety, the company is liable. 4. Appeal and Error—Setting Aside Verdict—Conflicting Evidence.—In an action for death by wrongful act of another, if the evidence as to the negligence of the defendant and the contributory negligence of the plaintiff is conflicting, and the jury has been properly instructed, the verdict cannot be disturbed on writ of error, if there is sufficient evidence to support it.

Error to a judgment of the Court of Law and Chancery of the city of Norfolk, rendered June 25, 1902, in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. The instructions given by the court were as follows: 1. The court instructs the jury that a street car company engaged in the business of carrying passengers is bound to use the utmost care and diligence for the safety of passengers, and is liable for an injury to a passenger occasioned by the slightest neglect against which human prudence and oversight might have guarded, if the passenger himself has not been guilty of any negligence which contributed to the injury. 2. The court further instructs the jury that, if they believe from the evidence that the decedent, Robert R. Morris, on the 9th day of June, 1901, endeavored to get into the car of the defendant company, while it was standing at its stopping place at Sewell’s Point for the purpose of receiving passengers, and without any objection on the part of any employee of the company, with the object of coming to Norfolk therein, then the plaintiff, in so endeavoring to get into said car was a passenger under the care of the said defendant company; and if the jury further believe from the evidence that the said Robert R. Morris was thrown from the said car and injured by the negligent starting of said car, while he was in the act of getting therein, and while exercising such care as might reasonably be expected of a man of his age under the circumstances, and that he died within a few days thereafter as the result of the injuries so received, then they should find for the plaintiff. 3. The court further instructs the jury that it is the duty of a street car company, when its cars are standing at a stopping place for the reception of passengers, to use the highest degree of care to see that all passengers lawfully entering its cars, get to a place of safety thereon before starting its cars, and if they believe from the evidence that the defendant company started its car when the decedent, Robert R. Morris, was lawfully entering the said car and before he could get into a place of safety thereon, and that the fact that said decedent was so entering said car and had not gotten to a place of safety thereon at the time it was started, was known to said defendant or its servants, or could have been known to them by the exercise of the greatest care, and that his death was caused by the failure of said defendant to exercise such care, then they should find for the plaintiff; unless they believe from the evidence that said Morris was guilty of negligence which contributed to the injury. 4. The court further instructs the jury that, if the defendant seeks to relieve itself of liability by reason of the plaintiff’s having been guilty of contributory negligence, the burden of proving such contributory negligence rests upon the defendant, unless such contributory negligence is disclosed by the plaintiff’s evidence, or can fairly be inferred from the circumstances. 5. The court further instructs the jury that, although they may believe from the evidence that the rules and regulations of the defendant company forbade passengers getting upon its cars on the side on which the plaintiff’s intestate was, at the time of the injury complained of, yet if they believe from the evidence that the defendant’s servants had not enforced said rules and. regulations in that respect, but had systematically allowed the same to be violated, and it had become usual and customary for passengers to board cars of the defendant at that point on that side, and that on the day on which the injury was sustained numbers of passengers did board said car on that side, which was known to the said defendant’s servants, and wdthout complaint by them or any attempt to prevent the same; then they are instructed that the plaintiff is not prevented from recovery because her said intestate boarded the said car on the side on which he was at the time of the injury, unless they further believe from the evidence that to board said car at that point, time and place was obviously dangerous, and such an act as a reasonable man would have regarded as attended with danger. 6. The court further instructs the jury that, although they may believe from the evidence that the decedent at the time of the injury complained of was suffering from a disease, or a predisposition to a disease, which concurring with the injury produced his death, yet if they further believe from the evidence that the injury suffered by the decedent brought about and caused the active development of such disease, and that if it had not been for such injury the disease would not have alone caused decedent’s death at that time, then they are instructed that the effect of such disease or predisposition to disease on the part of the decedent does not alone relieve the defendant from liability should they deem it otherwise liable. 7. The court further instructs the jury, if they find for the plaintiff, they may assess the damages in such a sum as they may deem fair and just under all the circumstances of the case; such damages not to exceed ten thousand dollars ($10,000), and may direct in what proportion any damages they may assess shall be distributed to the wife and children of the said decedent. 8. The court further instructs the jury that, although the plaintiff must prove his case by a preponderance of evidence, yet this does not necessarily mean that he must prove it by the greater number of witnesses. In ascertaining upon which side is the preponderance of evidence the jury should consider not only the number of witnesses, but also their credibility and the reasonableness of their testimony when taken in connection with all the facts and circumstances of the case. 9. If the jury, after considering all the evidence, should conclude from the evidence that the plaintiff is entitled to damages, in arriving at the amount of such damages they should consider the' physical condition of R. R. Morris at the time of the injury among other facts given in evidence, and should assess the damages at such sum as they consider fair and just under all the circumstances of the case. 10. In order for the plaintiff to recover it must be established that the defendant company was guilty of negligence which caused the death of R. R. Morris. The burden of establishing this is upon the plaintiff, and she must prove it to the satisfaction of the jury by a preponderance of the evidence, the jury to take into consideration .and weigh the evidence for the defendant as well as for the plaintiff, and even if defendant was negligent she cannot recover if R. R. Morris contributed to his injuries by his own negligence. . 11. The mere fact that R. R. Morris had his leg crushed by a car of the defendant, whether death resulted therefrom or not, does not prove negligence on the part of the defendant. 12. That the death of R. R. Morris was caused by the injury done him by the car of the defendant must be proved by the plaintiff by a preponderance of testimony. If the jury believe from the evidence that death did result therefrom, still the plaintiff cannot recover unless she prove injury to have been caused by negligence of the defendant, and not then, if the jury further believe from the evidence that R. R. Morris contributed to his injury by his own negligence. 13. If the jury believe from the evidence that the defendant’s cars were full of passengers so that there was not available space for the reception in a place of safety thereon of R. R. Morris as a passenger, and that the said R. R. Morris knew or was informed of this fact, and was prohibited by the Assistant Superintendent of the defendant’s company from remaining on said car in an unsafe place, or was requested by said Assistant Superintendent to get off of such unsafe place on said car and wait for the next car; and that notwithstanding such prohibition or request the said ft. ft. Morris left the car and afterwards got on the train, or attempted to do so, then the court.instructs the jury that the said E. E. Morris was not a passenger of the defendant.company, and the company is not liable for injuries done him unless the same were caused by the wilful or reckless acts of said' company. 14. Any act on the part of E. E. Morris which contributed to the injury and which an ordinarily prudent man, acting prudently, would not have done is contributory negligence on his part. 15. If the jury believe from the evidence that E. E. Morris ■attempted to get upon the car of the defendant after the same had started and while same was in motion, and in making such an attempt fell and thereby occasioned the injury complained •of, then the court instructs the jury that the said E. E. Morris took the risk of boarding the car while it was in motion upon himself, and they must bring in their verdict for the defendant. 16. If the jury believe from the evidence that there was plenty of light in and about the cars, it was not negligence if lights were not stationed in the cars themselves. 1?. If the jury believe from the evidence that the defendant’s cars were stopped at its Sewell’s Point Pier Terminus for a reasonable time to enable passengers to get on, and that said cars became crowded and full with passengers, and that then the conductor called “All aboard,” and the motorman hammered his gong before starting, and that the cars started smoothly without unusual jolts or jerks, and that there was plenty of light in and about the cars, and that E. E. Morris attempted to get upon said cars after such signals to start were given, and that the defendant did not know Morris was attempting to get on the cars in time to prevent the accident, or could not have known it, by the exercise of the greatest care, then the court instructs the jury that there 'was no negligence on the part of the defendant, in which case the jury should bring in their verdict for the defendant.