City of Charlottesville v. Jones , 123 Va. 682 ( 1918 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The assignments of error raise the questions which will be passed upon in their order as stated below.

1. Was the city guilty of such negligence in not providing a hand-rail on the northern side of the bridge that it was liable in damages to the plaintiff for his injury, if such negligence was the proximate cause thereof?

The duty of the city in the premises was to use reasonable care to keep and maintain the bridge in good and sufficient repair to render it reasonably safe for all persons exercising ordinary care and prudence in passing on or over it. The question of fact as to whether the city has discharged that duty was submitted to the jury by plaintiff’s instruction No. 1, above quoted. The fact that the defendant city allowed the hand-rail to remain off the bridge for a period of about three weeks before the accident, without any excuse being shown therefor, was suffieient evidence to warrant the jury in finding the city guilty of negligent breach of its duty aforesaid. The verdict of the jury, therefore, concluded the question we have under consideration in the affirmative.

2. Was the negligence of the. city aforesaid the proximate cause of the injury aforesaid?

From the statement of facts preceding this opinion it is manifest that this question must be answered in the affirmative, unless the plaintiff was guilty of contributory negligence, which would bar his recovery. This brings us to the consideration of the main controverted question in the case upon the facts, namely:

3. Was the plaintiff guilty of contributory negligence in not observing his nearness to the northern edge or side of the bridge and the absence of the hand-rail and in his walking off the bridge as he did?

The determination of this question ’ depends, of course, upon the determination of the controverted question of fact as to what was the condition of light or darkness upon the bridge at the time of the accident. There being a conflict in the testimony on this subject, as shown in the above statement of facts, ordinarily the verdict of the jury would admittedly conclude the question. The city, however, invokes against such a conclusion the well established rule that “courts are not required to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible;” and the following cases are cited on the point. N. & W. Ry. v. Strickler, 118 Va. 153, 155, 86 S. E. 824; Mitchell v. So. Ry. Co., 118 Va. 643, 647, 88 S. E. 56; Va. I. C. & C. Co. v. Kiser, 105 Va. 695, 54 S. E. 889; N. & W. Ry. Co. v. Crowe, 110 Va. 798. 805, 67 S. E. 518; Artz v. R. R. Co., 34 Ia. 154, 159; So. Ry. Co. v. Wiley, 112 Va. 183, 191, 70 S. E. 510; C. & O. v. Anderson, 93 Va. 650, 664, 25 S. E. 947; Lake Erie, etc., Co. v. Stick, 143 Ind. 449, 41 N. E. 365; Hunter v. N. Y., etc., Co. 116 N. Y. 615, 23 N. E. 9, 6 L. R. A. 246; San Antonio Ry. Co. v. Choate (Tex. Civ. App.), 35 S. W. 180; 4 Elliott on R. R. 2723; Moore on Facts, section 160. And it is contended that the physical fact being uncontradicted that a five-hundred candle power iarc light was located at the intersection of Fifth and Garrett streets, which was variously estimated by the witnesses as from one hundred feet to two hundred and ten feet behind the plaintiff as he went upon the bridge, this court will judicially know that the testimony of the plaintiff was incredible wherein he said that it was so dark when he found he was on the bridge that he did not know that he was at the northern edge of the bridge; because the physical fact was that such a light at such a distance would so light the bridge that such a statement is in conflict with the physical facts. Such position ignores the effect of the clouds and the dampness of the night of the accident upon the spread of the beams of light from the arc-light toward and upon the bridge; the effect'of the fact that such light was behind the plaintiff as he walked to and upon the bridge; the ef-. feet of the distance of the light away, which was left to be fixed by the jury from conflicting estimates of it; and the effect of the fact that the plaintiff as he came upon the bridge was faced with a light from within Allen’s store which, shone in his eyes and thus affected his vision—all of which were facts or circumstances for the consideration of the jury, and which they, having viewed the scene of the accident at the same hour of night and under conditions of cloudiness as nearly alike those which existed on the night of the accident as were found practicable, were in a better position than this court can be to weigh and consider. By their verdict the jury, in effect, found that the alleged conflict with physical facts aforesaid did not in fact exist. And the evidence, set forth in the statement of facts above is such that the jury were warranted in reaching such conclusion.

This is not. a case where an admitted fact, or the testimony for a party to the cause, discloses a physical fact which is irreconcilable with some positions taken in another part or parts of such testimony.

We, as a court, therefore, cannot say that this is a case to which the rule invoked as aforesaid is applicable. On the contrary we are precluded by the verdict of the jury from so holding.

The question under consideration must, therefore, be answered in the negative.

The assignments of error based upon the action of the trial court with respect to the instructions raise the following points for our consideration.

4. It is urged by the city that plaintiff’s instruction No. 1 required of it a higher degree of care than the law imposed, in that it used the word “all” as descriptive of the “reasonable care and precaution” which the instruction mentions. This is alleged to be a vice in verbiage very similar to the vice in instructions on contributory negligence consisting in the statement that if the plaintiff’s negligence contributed to his injury “in the slightest degree,” he was barred, which was condemned in the case of Clinchfield Coal Corp. v. Osborne, 114 Va. 13, 17, 55 S. E. 750.

We do not think that this point is well taken. The word “all” is not used in the first part of this instruction, which defines the duty of the defendant city. It is used only in connection with that portion of the instruction, which refers to the breach of duty of the city; and while it does emphasize the statement made in that connection, it adds nothing to the degree of care which the law imposed upon the defendant. The word “all” is itself qualified by the word “reasonable” which prevented the misleading of the jury into the idea that any trivial neglect of duty was what was meant by the instruction, for that would not have been a failure to use “reasonable care and precaution,” but a failure to use an unreasonable care and precaution.

5. The point is also urged against plaintiffs instruction No. 1, that in its use of the language “such a degree of care and caution as under the circumstances might reasonably be expected from a man of reasonable care and prudence,” it allowed the jury to ignore the prior knowledge of the plaintiff of the situation and permitted the plaintiff to recover as if he were in the position of an ideal man exercising reasonable c§re and prudence, who is referred to in this instruction, although such ideal man may have had no prior knowledge of the situation.

We do not think that there is any merit in this position.

The words, “under the circumstances,” employed in the instruction, confined the jury to the consideration of the instant case in which there was no dispute that the plaintiff had prior knowledge of the locality. Whether he had prior knowledge of the defect in the bridge—the absence of the hand-rail—which rendered the crossing of the bridge in the night time dangerous, was a question for the jury and was or was not one of the “circumstances” in the case as they might find to be the fact.

Moreover, when this instruction is read in connection with the other instructions given in the case, there is no room left for the construction of it which' is placed upon it by the point under consideration.

6. It is urged that plaintiff’s instruction No. 2 is erroneous because it imposes upon the city an absolute duty to provide all things necessary for the safety of travelers.

We do not consider this instruction free from all exception, and therefore do not give it our approval as a model instruction; but we do not think that it is open to the objection urged against it just stated—the only point urged against it in the assignments of error in the petition, and hence, the only objection to it which is before us for consideration. With respect to such objection we have the following to say:

It is true that it is well settled that the duty of a municipality to provide safe streets is not absolute. Its duty in that behalf is to exercise “reasonable care” to make and keep its streets “reasonably safe for those exercising reasonable care for their own protection.” Cook v. Danville 116 Va. 383; 385, 82 S. E. 90, L. R. A. 1915a, 1199; Richmond v.v Pemberton, 108 Va. 220, 61 S. E. 787; City of Richmond v. McCormack, 120 Va., 552, 91 S. E. 767. But the instruction under consideration does not base the plaintiff’s right of recovery upon the absolute duty of the city to make the bridge “safe." It does not, indeed, instruct the jury on the subject of the duty of the city in the premises. That function is performed by plaintiff’s instruction No. 1, with which the instruction now under consideration must be read. When so read, we think there could have been no misconception of it by the jury on the point urged against it in the assignments of error.

7. It is urged that plaintiff’s instruction No. 5 is erroneous because the scope of the jury’s enquiry in ascertaining prospective damages is in no way defined.

We think that when read in connection with plaintiff’s instruction No. 4 the instruction under consideration is not open to the- objection urged against it, instruction No. 4 directed that if the jury should find for the plaintiff, “in estimating his damages they may take into consideration any bodily injuries which he may have sustained by reason of the accident complained of and any physical pain he may have suffered thereby.” There was no evidence in the case, it is true, of loss of earning capacity of the plaintiff, but there was evidence of the permanence of his injury and his continued and prospective physical suffering therefrom. Reading the two instructions together we' think that the reasonable and obvious construction of instruction No. 5 is that it confined the scope of the jury’s enquiry in ascertaining prospective damages to the assessment of damages for the permanent bodily injuries aforesaid (for his lack of “good active use of that foot,” which the physician testifies was a permanent condition), and for any physical pain they might believe he would suffer in future by reason thereof. See Winchester v. Carroll, supra, 99 Va. 727, 40 S. E. 37, for an instruction (No, 12 in .that case) similar to that under consideration.

8. The refusing to give defendant’s instruction No. 3, and the giving of it as modified, is urged as error.

It is contended that this instruction as offered had the purpose to tell the jury that contributory negligence barred recovery. That the instruction as given eliminated that thought altogether and left the defendant with no general instruction on that point; “so that the jury were left with no guide whatever on such point, which was vital to the defendant.”

This position overlooks the giving of defendant’s instruction No. 5 as modified and No. 6. They were not general instructions, it is true, but specific instructions having reference to all the evidence in the case on which the defendant relied, or could rely, to show contributory negligence of the plaintiff. ■ They, therefore, furnished the jury with a guide, and the proper guide, on the point of contributory negligence. Instruction No. 6 specifically told the jury that if they found certain facts that the plaintiff was “guilty of contributory negligence and cannot recover.” Instruction No. 5, given as modified, was the same in substance. Hence, the giving of a'general and abstract instruction on the subject of contributory negligence was unnecessary.

We, therefore, find no merit in the point under consideration.

9. What has been just said in reference to defendant’s instruction No. 3, also applies to and disposes of the assignment of error because of the refusal of the court below to give defendant’s general instruction No. 4, on the subject of contributory negligence.

10. The objections urged to the action of the trial court in refusing defendant’s instruction .No. 5 and giving it as modified, is to the insertion of the language “if he knew or ought to have known of this” (referring to the absence of the hand-rail), in the instruction as offered.

The language objected to manifestly had reference to a prior actual or imputed knowledge of the plaintiff of the absence of the hand-rail; an element of fact, which, if it existed, differentiated the case from that of a pedestrian who had no prior knowledge of the defect rendering the crossing of the bridge dangerous. Winchester v. Carroll, 99 Va. 727, 743, 40 S. E. 37; Bedford City v. Sitwell, 110 Va. 296, 65 S. E. 471. And this was, in truth, a question of fact raised by the evidence in the instant case. Such language was, therefore, properly inserted in the instruction.

11. What is said next above as to the giving of defendant’s instruction No. 5, also applies to and disposes of the objection urged to the addition of the language, “if he knew or by the exercise of ordinary care ought to have known that it was dangerous,” to defendant’s instruction No. 7 as offered.

12. The refusal of defendant’s instruction No. 8 is not specifically assigned as error in the petition. It is argued, however, in the petition that such refusal was error because the jury were left uninstructed upon the-view that the reasonableness of the conduct of the plaintiff should have been determined in the light of the consideration of his old age and the rule of law that if by old age his activity-had been impaired that fact imposed upon him the duty of using greater precaution—citing Winchester v. Carroll, supra, 99 Va. 727, 734, 40 S. E. 37.

There was no evidence in the case tending to show that any want of activity on the part of the plaintiff contributed in the slightest degree to the accident.

Even if there had been such evidence it might have been error to have given such instruction, because it was upon the subject of the weight of evidence and singled out and emphasized one circumstance which should have been considered by the jury along with all the other circumstances in the case. That it embodied a correct abstract statement, of the law did not make it a proper instruction to the jury.

And as to the old age of the plaintiff, the other instructions given by the court, notably No. 5 as modified, No. 6, No. 7 as modified, No. 9, No. 10 and No. 11, left no room for the jury to entertain the view that old age, or anything else, relieved the plaintiff of the duty to exercise ordinary care in passing along the street and over the bridge.

We do not consider, therefore, that there was any error in refusing the instruction under consideration.

18. The sole remaining assignment of error is the action of the court below in modifying defendant’s instruction No. 11 as offered by adding thereto the language, “provided an ordinarily prudent person under similar circumstances would have remembered it.”

The objections urged to this added provision is that it introduces a new element into negligence cases. That the memory of an ordinarily prudent man is a new attribute of that ideal person; and that what such a man might or might not ordinarily remember cannot be considered by a jury in admeasuring the conduct .of a plaintiff by comparing it with that of an ordinarily prudent person under similar circumstances.

It is true, that it is well settled, that the general rule is, that inattention to or forgetfulness of a well known danger or peril will not excuse a failure to avoid it. City-of-Richmond v. Courtney, 73 Va. (32 Gratt.) 792; 20 R. C. L., p. 110, sec. 96. But where no question of the assumption of risk is involved, but only a question of contributory negligence (as in the instant case), on principle, inattention of failure of memory would not be contributory negligence, if under all the circumstances of the case it was legally excusable. And it is so excusable under certain circumstances, as is expressly held by the authorities—as where the plaintiff has his attention diverted by such 'a cause, or causes, as would ordinarily induce such forgetfulness or inattention in an ordinarily prudent or careful person in the same or in a similar situation. And there are other circumstances which may take a case of lapse of memory or lack of attention from under the operation of the general rule mentioned. 20 R. C. L., p. 110, sec. 96; 1 Labatt on Master & Servant, sec. 63, 281. After all, then, the enquiry concerning whether a failure of memory, or inattention, is such contributory negligence on the part of a plaintiff as will bar his recovery, is not different, in legal principle, or in practical application, from the enquiry as to whether any other" act of the plaintiff constitutes such negligence, and it is to be measured by the same standard applicable to all other .acts thus drawn in question, namely, by the standard of the action of the ideal man, which has been fixed upon by the law, to-wit, the action of the ordinarily prudent or careful person under the same or similar circumstances. The instruction under consideration asked the court, in effect, to instruct the jury that" there could be no legal excuse for a failure of memory, or for inattention, to a once known fact. This would have been error. Moreover, in the instant case the plaintiff testified, in effect, that by reason, of the dirt covered condition of the bridge and the darkness he was not aware that he was on the bridge until he had partly traversed it, and that in this situation, the light shining in front of him from Allen’s store windows thereupon misled him into the belief that he had reached the eastern end of the bridge and that the path where it left the bridge going up to Allen’s store was in front of him and in the direction in which he then proceeded ; and that because of that situation he really couldn’t say that he was thinking about the hand-rail, and stepped, as he thought, on the path, when he in fact stepped off the side of the bridge. This was a situation in which it was a question of fact for the jury to determine whether the plaintiff was negligent in his inattention to or forgetfulness of the- absence of the hand-rail, if they believed from the evidence that he had prior knowledge of its absence. We think, therefore, that there was no error in the modification of defendant’s instruction No. 11, which is objected to.

For the foregoing reasons we find no error in the judgment complained of and the same will be affirmed.

Affirmed.