Garthright v. Railway & Electric Co. W. T. GARTHRIGHT V. RICHMOND RAILWAY AND ELECTRIC COMPANY. Virginia Supreme Court of Appeals, February 20, 1896. ELECTRIC STREET RAILWAY.-DUTY TO USE PROPER APPLIANCES.-OVER CROWDING. In an action for damages for injuries caused by collision of a trolley car with a hook and ladder truck, defendant complained of an instruction to the jury that if they believed the collision was due either to failure to use a Sprague motor or to overcrowding, they must find the company was guilty of negligence, even though the motorman did everything in his power to prevent the collision. Held, no error, even though there was not evidence sufficient to support the alternative as to the Sprague motor, it appearing that but for overcrowding the car might have been stopped in time to avoid the accident. APPEAL by defendant below from judgment of Circuit Court of the city of Richmond. Facts stated in opinion. Wyndham R. Meredith, for the plaintiff in error. Courtney & Patterson, for the defendant in error. RIELY, J.: The judgment to which the writ of error was awarded in this case was recovered for injuries received in a collision between a car of the Richmond Railway & Electric Company and a hook and ladder truck of the Fire Department of the city of Richmond. Three grounds are assigned for the reversal of the judgment. The first is that the plaintiff in the suit was barred of the right to recover because of his own contributory negligence. Garthright v. Railway & Electric Co. The case comes before us upon a certificate of the evidence, and in considering it we must apply the familiar rules applicable to a demurrer to evidence. These rules require us to accept as true all of the plaintiff's evidence, and all just inferences which could be properly drawn from it by a jury, and to reject all of the evidence of the defendant which conflicts with that of the plaintiff and all inferences which do not necessarily result from it. Many witnesses were examined on both sides, and there was considerable conflict in much of the testimony. It is unnecessary to rehearse it, but sufficient to say that, testing it by the above rules, the evidence clearly establishes the negligence of the defendant company, and does not justify the claim that the plaintiff was guilty of such contributory negligence that, but for the same, the accident would not have happened. The second assignment of error relates to the instruction given by the court, numbered 2, which is as follows: "The jury are further instructed that if they believe from the evidence that when the horses of the truck came in sight of persons on the defendant's car, the said car was at such a distance from the point of collision that the accident might have been averted but for the want of a Sprague motor on the car or the crowding on the platform of passengers preventing the motorman's use of his machinery, then the defendant company was guilty of negligence, and the jury must find for the plaintiff, even though they believe that the motorman on the car did all in his power to stop his car, unless they believe that the negligence of plaintiff or tillerman contributed to the accident." The objection made to this instruction is that it pronounces the failure of the company to equip its car with a Sprague motor to be negligence, when there was no evidence before the jury tending to show that such motor was a necessary equipment of its car, or that the want of Garthright v. Railway & Electric Co. it caused the accident in which the plaintiff was injured. The evidence upon this point was very meager. Only three witnesses, all of whom were called by the defendant, testified in regard to the matter. One of them, Mr. Hill, who had worked in the shops of the company, and was a conductor on one of its cars at the time he testified, but had never been a motorman, stated that this particular car was the only one that was provided at the time of the accident with a Westinghouse motor, and that the others were equipped with Sprague motors. When questioned as to which was the best machine for stopping a car suddenly, he answered that the Westinghouse "reverses slower," and that the Sprague "takes quicker than the other," whatever that may mean. Mr. Jackson, who was the conductor on the car, was asked by which motor could a car be stopped in the shortest distance, and replied that it was as easy to stop the car with the one as the other. Major Selden, the superintendent of the company, was the only other witness as to this matter. He stated that the company, at the time he testified, was using the Westinghouse motor almost entirely on its Main street line and the Sprague motor on its Clay street line. When asked which was the best motor, he stated, "I think the Westinghouse a little better;" and, when asked further, if a car could be stopped quicker with the Westinghouse motor than with the Sprague, he replied, "The difference is so slight, it is hardly appreciable." The foregoing is substantially all the evidence upon which the instruction complained of was based. It thus appears that it was not testified to that the Sprague motor was a better appliance than the Westinghouse, or that at the time of the accident it had been tested and was in practical use by electric street railways, or had been adopted by them as a safer machine, or that the accident could have been averted if the car had been equipped with a Sprague motor. Garthright v. Railway & Electric Co. It was the legal duty of the defendant company to provide its cars with suitable and safe machinery. It is incumbent upon a railway company, propelled by the powerful and dangerous agencies of steam or electricity, especially in a large and populous city, to use ordinary and reasonable care to avail itself of all new inventions and improvements known to it which will contribute to the safety of its passengers, and prevent accidents to others, whenever the utility of such improvement has been tested and demonstrated; but it is not required to have in use the latest improvements which human skill and ingenuity have devised to prevent accidents. Patterson's Railway Law, sections 245-247, and Elliott on Streets, 610. The instruction was erroneous in singling out the Sprague motor, and making the liability of the railway company depend upon its failure to equip its car with such motor, if the jury believed that by its use the accident could have been averted, when it had not been shown in evidence that the Sprague motor was a better and safer appliance, or that it had been tested, and its superiority over the Westinghouse demonstrated. It does not follow, however, that the judgment for that reason must be reversed. It is the settled rule of this court, recognized and acted upon in numerous cases, that if the court can see from the whole record that, even under correct instructions, a different verdict could not have been rightly found, or that the exceptant could not have been prejudiced by the erroneous instruction, it will not, for such error, reverse it. Preston v. Harvey, 2 H. & M. 55; Colvin v. Menefee, 11 Grat. 87; Kincheloe v. Tracewells, id. 587; Bank of Danville v. Waddill, 27 Grat. 448; Brighthope Railway Co. v. Rogers, 76 Va. 443; W. U. Tel. Co. v. Reynolds, 77 Va. 173; Snouffer v. Hansbrough, 79 Va. 166; Penn v. Hatcher, 81 Va. 25; Railroad Co. v. McKenzie, id. 71; Payne v. Grant, id. 164; Garthright v. Railway & Electric Co. R. & D. R. Co. v. Norment, 84 Va. 167; Commonwealth v. Lucas, 84 Va. 303; Wager v. Barbour, 84 Va. 419; Bernard v. R. F. & P. R. R. Co., 85 Va. 792; and Richmond Granite Co. v. Bailey (decided at the present term) ante, p. 554. See also, Sack. Instruct. Juries (2d ed.), 24. The collision between the car and the truck took place. at the intersection of Main and Third streets. The car was passing down Main street, and the truck was proceeding along Third street. It appears from the evidence that the company had the right, under the law, to run its cars at as great a rate of speed as six miles an hour; that this car was capable of seating twenty-two persons, and could comfortably transport as many as fifty persons; that the cars could be stopped within a distance equal to their length, or at most within a distance equal to a length and a half of a car, which was generally understood by the public; and that this particular car was about twenty-two feet long, including its front and rear platforms. It also appears from the evidence that the car at the time of the collision was crowded with passengers to its utmost capacity, and that both platforms, and even the steps, were thronged; it being variously estimated that there were not less than from sixty to eighty people on the car. So crowded and jammed together were they that the conductor was unable to collect the fare from half of them, and the motorman unable, as testified to by some of the witnesses, to have free command of his brake. As to the foregoing facts there was no material, if any, conflict between the evidence of the plaintiff and that of the defendant. There was very much conflict, however, in the evidence in other material respects. If we look to that of the plaintiff alone, it appears that the car was somewhere between fifty and ninety feet-these being the two extremes of the estimates of the witnesses-above Third street when the truck reached Main street, and started to go across the |