Reynolds v. Richmond & Manchester Railway Co. , 92 Va. 400 ( 1895 )

Harrison, J.,

delivered the opinion of the court.

This action was brought by W. EL Reynolds against the Richmond and Manchester Railway Company, to recover damages for an injury alleged to have been received by him, in a fall, while attempting to get on the defendant company’s car.

The first assignment of error is that the court below refused to admit the evidence of a witness introduced by the plaintiff to prove his character as a man of truth.

The chief ground for introducing this witness in support of the plaintiff’s character for truth was that, in the cross-examination of the plaintiff, his character had been attacked. The record does not sustain this position. The object of the cross-examination was not to impeach the witness or to reflect upon him, but it was to show that the injury complained of had probably been sustained by the plaintiff before the time qf the accident then being investigated. This examination brought out the fact that plaintiff had been cut in the face ; had been shot in the hip, and had never found the ball; had at another time been shot in the arm, his nerves being so shattered that he could not pick up type ; that at another time he had been met in the woods by three men at night, knocked over the head, robbed, and left senseless on the ground; that at another time he had a log to roll over him at a house-raising, and had been struck in the back by a door-knob.

In determining whether or not the injury resulted from the street-car accident, it was proper for these facts to go to the jury, especially as the witness had stated that he did not know he was so badly hurt by the fall from the street-car, until some time after it occurred.

The rule on this subject is stated by Judge Burks, in George v. Pilcher, 28 Gratt. 299, to be as follows : “ Whenever the character of a witness for truth is attacked, either by direct evidence of want of truth, or by cross-examination, or by proof of contradictory statements in regard to the material facts, or by disproving by other witnesses material facts stated by him in his examination, or, in general, whenever his character for truth is impeached in any way known to the law, the party calling him may sustain him by evidence of his general reputation for truth.”

Applying this liberal exposition of the doctrine touching the introduction of such evidence to the case before us, we think the plaintiff has failed to bring himself within its terms. Ro attack was made on his character for truth. The court had already decided that the plaintiff’s character was not in issue, and refused to allow defendant’s counsel to ask him, or any of his witnesses, questions tending to affect his character, and had told the jury that they were not to consider any evidence tending to reflect upon him.

The second assignment of error is to the action of the court in refusing to give the instructions offered by the plaintiff, and, instead, giving its own instructions. The following are the instructions given :

“1. The court instructs the jury that a common carrier of 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 foresight might have guarded.”

“ 2. If the jury believe from the evidence that the plaintiff hailed the street-car mentioned in the evidence, for the purpose of embarking thereon as a passenger, and that the said car was in consequence thereof arrested as if it was going to stop, or stopped, by a servant or servants of the defendant company, and that the plaintiff endeavored to get upon said car, then the plaintiff, in so endeavoring to get upon said car, was a passenger under the care of the defendant company; and if the jury further believe from the evidence that the plaintiff was injured by the negligent starting of the car, while he was in the act of getting thereon, in the exercise of such care as might reasonably be expected from a man of his age, under the circumstances, then they should find for the plaintiff. But if the jury believe from the evidence that the car slowed up in consequence of nearing a curve and down grade, and not in response to any signal from the plaintiff, then the plaintiff was not a passenger.”

“ 3. The court instructs the jury that if they believe from the evidence that Mr. Reynolds was an old man, and attempted to board the defendant’s car, without invitation from the defendant or its agents, while it was in motion, very much crowded both inside and on the platform, and while he was encumbered with a cane and umbrella, and that after getting a footing on the car he let go his hold on the railing to catch at his hat, and fell, he was guilty of contributory negligence, and they must find for the defendant, unless they believe from the evidence that the defendant could have prevented the accident by due care on its part.”

“4. The court instructs the jury that, in order for the plaintiff to recover, he must show that the personal injury received was the result of some act of negligence on the part of the railway company, or its servants. The mere fact of an injury is not enough without proof of negligence on the part of the defendant, and the burden of proof to establish such negligence is upon the plaintiff. But the jury should consider the whole evidence in the case on both sides in reaching a conclusion as to the fact of negligence.”

It is unnecessary to prolong this opinion by discussing the several objections urged to these instructions by the plaintiff As a whole, taken in connection with the pleading and evidence, they fairly lay down the law governing the case, and it does not appear that the jury could have been misled, or that the plaintiff has been in any way injured by them.

The third assignment of error is that the court overruled plaintiff’s motion to set the verdict aside and grant a new trial.

Three grounds were urged in support of this motion. The first and third have been disposed of in connection with the assignments of error already considered.

The second ground stated for the new trial was that Howell E. Cobb, a member of the jury, was an employee of the defendant company, and did not disclose the fact when the jury was asked by the court if any of them held stock, were interested in, or were employees of the company. The evidence abundantly shows that Howell E. Cobb was a competent juror, and that he was not an employee of the defendant company in any sense that rendered him incompetent. He was a carpenter by trade and picked up little jobs by the day wherever he could. At the time he was summoned he was working on a small job that he had been directed to do by the president of the company, and which would have been finished -in a day or two. He was never regarded as an employee, and his name had never been upon the company’s pay-roll. He did not consider himself an employee of the company, and thought his work ended when forced to give it up to serve on the jury.

“ A new trial will not be granted on account of the disqualification of a juror for matter that is a principal cause of challenge, which existed before he was elected and sworn as such juror, but which was unknown to the party until after the trial, and which could not have been discovered by the exercise of ordinary diligence, unless it appears from the whole case made before the court on the motion for a new trial that the party suffered injustice from the fact that such juror served in the trial of the case.” Beck v. Thompson, 31 W. Va. 459; Simmons & Winch v. McConnell, 86 Va. 494, 500 ; Gray v. Commonwealth, recently decided by this court, post.

It appears, in the case at bar, that the objection now made to this juror was known to the plaintiff before the case was submitted to the jury, and yet no question was raised as to his competency until after the verdict. It further appears-that the plaintiff has suffered no injustice by the-service of this juror ; on the contrary, that he has had a fair and impartial trial.

There is no error in the judgment of the court below", and it is affirmed.

Affirmed.