Greater Richmond Transit Co. v. Massey

Present: All the Justices
GREATER RICHMOND TRANSIT CO., ET AL.
v. Record No. 032349 OPINION BY JUSTICE DONALD W. LEMONS
September 17, 2004
LYNDA MASSEY
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
In this appeal, we consider whether the trial court
properly permitted a plaintiff to introduce an absent
witness’s deposition into evidence under Rule 4:7(a)(4). We
also consider whether the trial court properly refused to
grant one or more of three instructions concerning
contributory negligence.
I. Facts and Proceedings Below
On April 11, 2002, a Greater Richmond Transit Company
(“GRTC”) bus driven by Clarence R. Muhammad (“Muhammad”)
collided with an automobile driven by James R. Ryan ("Ryan")
at the intersection of Marshall Street and North 1st Street in
Richmond, Virginia. Lynda L. Massey ("Massey") was a
passenger on the bus at the time of the accident.
Anthony Connerly ("Connerly") was an eyewitness to the
accident. In a videotaped deposition, Connerly testified that
the bus sped through a red light at the intersection
immediately before the collision.
Both Massey and Ryan subpoenaed Connerly to the trial.
However, Connerly did not appear. A telephone call to his
office resulted in a message to the trial court that Connerly
was "on a construction site and he's unable to get here." The
trial court permitted Connerly's videotaped deposition to be
viewed by the jury over the objection of GRTC. GRTC was
permitted to introduce into evidence a portion of Connerly's
testimony from a previous court proceeding related to the
accident. GRTC was also permitted to introduce testimony from
its claims agent about her conversation with Connerly after
the accident.
According to Massey, at the moment of impact, she was
seated two seats behind the driver, facing the aisle. The
impact threw her from her seat and she landed near the
driver's seat. According to Muhammad, Massey "stood up about
30 feet away from the intersection" and was standing in front
of her seat at the moment of impact.
Pursuant to a jury verdict, the trial court entered
judgment against Muhammad and GRTC, "individually and
severally," in the amount of $50,000. GRTC appeals the adverse
judgment of the trial court.
II. Analysis
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GRTC maintains that the trial court erred in admitting
Connerly's videotaped deposition as evidence and in refusing
to instruct the jury on contributory negligence. We disagree.
A. Admission of the Deposition as Evidence
GRTC maintains that allowing Anthony Connerly's
deposition to be read into evidence violated Rule 4:7(a)(4)
which states, in relevant part:
The deposition of a witness, whether or not a
party, may be used by any party for any purpose
in any action at law, issue out of chancery or
hearing ore tenus in equity if the court finds:
(A) that the witness is dead; or (B) that the
witness is at a greater distance than 100 miles
from the place of trial or hearing, or is out
of this Commonwealth, unless it appears that
the absence of the witness was procured by the
party offering the deposition; or (C) that the
witness is unable to attend or testify because
of age, illness, infirmity, or imprisonment; or
(D) that the party offering the deposition has
been unable to procure the attendance of the
witness by subpoena . . .
GRTC argues that Connerly's absence was not the type of
absence that would allow the use of his deposition as evidence
at trial under Rule 4:7(a)(4). However, Connerly's absence
fits squarely under subsection (D). Both Massey and Ryan had
subpoenaed Connerly, but he did not appear. They were unable
to procure his attendance by subpoena.
King v. International Harvester Co., 212 Va. 78, 85, 181
S.E.2d 656, 661 (1971), cited by GRTC is inapplicable to the
facts of this case. King involved a situation in which the
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plaintiff chose not to attend the trial. In those
circumstances, we held that the plaintiff would not be
permitted to introduce his own deposition as evidence. Here,
a nonparty witness's testimony was sought. Unlike a party,
who presumably controls its own participation, the use of a
subpoena is required to compel the attendance of a nonparty.
Here, the plaintiff used a subpoena, but was unable,
nonetheless, to compel the attendance of the witness.
There is no evidence in this case that Connerly's absence
was procured by plaintiff. Under the circumstances of this
case, we cannot say that the trial court abused its discretion
in admitting the videotape deposition under Rule 4:7(a)(4)(D).
B. Refusal of Contributory Negligence Instructions
GRTC assigns error to the trial court's refusal to grant
one or more of three jury instructions on contributory
negligence. GRTC argues that an instruction on contributory
negligence was appropriate because it had introduced evidence,
in the form of the testimony of Muhammad, that Massey had
risen from her seat before the bus came to a complete stop.
The trial court refused to give the instructions "because it
is not negligent normally to stand up in a bus before it stops
so you can get to the door if you are going to get off at the
next corner."
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Assuming, for the purposes of evaluating the jury
instruction, that Massey left her seat on the bus prior to the
impact with the automobile, the reasoning in Sikyta v. Arrow
Stage Lines, Inc., 470 N.W.2d 724 (Neb. 1991), is persuasive.
In that case, a passenger on a chartered bus left her seat
near the front of the bus while the bus was moving, to use a
bathroom provided at the rear of the bus. The bus applied its
breaks suddenly and the passenger landed headfirst in the
stairwell of the bus. Id. at 726-27. Citing case law from
Nebraska and other jurisdictions, the Nebraska court concluded
that "in and of itself, a passenger's act of standing in a
moving bus is not negligence. For that reason, the mere act
of standing without reference to attendant circumstances,
cannot be classified as negligence on [the passenger's] part."
Id. at 730-31 (citing Jacobs v. Milwaukee & Suburban Transp.
Corp., 165 N.W.2d 162, 164 (Wis. 1969); Southeastern Greyhound
Lines, Inc. v. Chumley, 226 S.W.2d 777, 780 (Ky. 1950);
Sanders v. New Orleans Public Service, Inc., 422 So. 2d 232,
235 (La. App. 1982)).
In Thomas v. Baltimore Transit Co., 127 A.2d 128, 131
(1956), the Maryland court held that rising and starting
"toward an exit while the [streetcar] is in motion . . . is so
customary as to be taken as a matter of course" and is
"insufficient evidence of negligence to permit the jury to be
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instructed that contributory negligence was an issue in the
case." In Longfellow v. City of Detroit, 5 N.W.2d 457, 459
(Mich. 1942), the court concluded that the plaintiff "had a
right to leave her seat and go to the front of the bus
preparatory to alighting." According to the court in Babcock
v. Los Angeles Traction Co., 60 P. 780, 782 (Cal. 1900):
[t]here is no rule of law which requires a
passenger in a street-car to retain his seat or
other position until the car has actually
stopped, and it is a matter of universal
observation that thousands every day leave
their seats to get off before the car has
stopped, without sustaining any injury.
The New York court in Wylde v. Northern Railroad Co. of New
Jersey, 53 N.Y. 156, 161 (N.Y. 1873), stated:
There is no ground for imputing negligence to
the plaintiff. . . . The train had reached its
destination, and the plaintiff left his seat
with a view of leaving the car as soon as the
train stopped. He did, as passengers usually
do, and what the company must have known they
were accustomed to do, and the plaintiff could
not have supposed that the act was inconsistent
with safety.
Finally, in Massotto v. Public Service Coordinated Transport,
156 A.2d 483, 485 (N.J. Super. 1959), the New Jersey court
held that "[t]he fact that plaintiff was injured when she was
in the act of choosing another seat in the bus" did not
provide a "factual basis for a finding that plaintiff was
guilty of contributory negligence."
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In this case, viewing the evidence in the light most
favorable to the party offering the instruction, Massey simply
acted as an ordinary, reasonable passenger would have acted in
rising from her seat as the bus approached her stop. GRTC is
not entitled to a jury instruction on contributory negligence
when there is no evidence tending to show Massey's negligence.
Sawyer v. Comerci, 264 Va. 68, 75, 563 S.E.2d 748, 753 (2002)
("[M]ore than a scintilla of evidence is necessary to
establish each of the elements of contributory negligence
before such instruction may be given to a jury."). The trial
court properly refused GRTC's proposed contributory negligence
instructions.
III. Conclusion
For the reasons stated, we hold that the trial court
properly admitted the deposition of Anthony Connerly as
evidence and properly refused GRTC's proposed instructions on
contributory negligence. The verdict of the trial court will
be affirmed.
Affirmed.
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