Richmond.

#### Richmond Passenger & Power Company v. Steger.

March 12, 1903.

1. Negligence—Street *Railways—Person on Track,—Contributory Negl*iycnoo—Instructions.—There being evidence tending to show that a plaintiff, after going upon a street railway track, did not use ordinary care in getting off before he was struck by an approaching car, which was very near and which he had signalled to stop, it was error to instruct the jury to find in his favor if they believed from the evidence that at the time he got on the track, “the motorman of the car saw, or could, by the exercise of ordinary care, have seen him in time to stop the car so as to avoid striking him, and failed, in the exercise of such care, to do so.”

2. Instructions—Effect *of*Inconsistency.—Where instructions are inconsistent with or contradict each other, it is impossible to say by which the jury was controlled, and the verdict should be set aside.

3. Verdicts—Erroneous *Instruction—When*Harmless.—This court will not set aside the verdict of a jury, although erroneous instructions have been given, if the record clearly shows that, upon proper instructions, the jury could not have properly found any other verdict. But this rule has no application when the evidence on the material questions involved is so conflicting that if the verdict had been for the opposite party the court could not have disturbed it.

Error to a judgment of the Law and Equity Court of the city of Richmond, rendered March 26, 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.

*Reversed.*

The opinion states the case.

*Henry Taylor, Jr.,*for the plaintiff in error.-

*320*Wyndham R. Meredith*and *B. O. James,*for the defendant in error.

Buchanan, J.,

delivered the opinion of the court.

R. H. Steger instituted his action of trespass on the case to recover damages for injuries done him by the Richmond Passenger and Power Company, a corporation operating a streetcar line in the city of Richmond. The plaintiff’s injuries were caused, it is alleged, by the negligent running of one of the defendant’s cars upon him whilst crossing its track at the intersection of Third and Broad streets in that city. The trial of the cause resulted in a verdict and judgment for the plaintiff. To that judgment this writ of error was awarded.

Two errors are assigned-—one to the action of the court in giving instruction “P” offered by the plaintiff, and the other to the refusal of the court to set aside the verdict.

. The instruction complained of is as follows: “If the jury believe from the evidence that at the time Mr. Steger got on the south track of defendant company while crossing Broad street at Third street the motorman of car Ro. 7 saw, or could, by the exercise of ordinary care, have seen, him in time to stop the car so as to avoid striking him, and he failed in the exercise of such care to do so, they are instructed they must find for the plaintiff.”

The objection made to the instruction is that, since it concludes with the direction to find for the plaintiff, it must therefore contain within itself every fact necessary for that conclusion, and yet it nowhere provides that the plaintiff must be free from contributory negligence.

The instruction assumes that the plaintiff was guilty of contributory negligence in going upon the street railway track at the time that he did, and then tells the jury that, notwithstanding such negligence he might recover, if they believed that the *321defendant saw, or eonld, by tbe exercise of ordinary care, have seen, the plaintiff in time to stop its car so as to avoid injuring him, and failed to do so. This was a correct statement of the law upon that assumption, unless there was evidence tending to show that the plaintiff, after he went upon the track, did not exercise ordinary care in getting off the track before the car reached him. There is evidence tending to show that the plaintiff, after he went upon the track, paid no further attention to the approaching car. If he had done so, the defendant’s counsel insists, he would have seen that .the car was not checking its speed nor going to stop, as he had motioned it to do, and when he saw this he might, by his own movements, have gotten out of the way of the car, and saved himself from injury.

The trial court, recognizing that there was such evidence, upon motion of the defendant, gave instruction Ho. 6 to the jury. By that instruction the jury were told in effect that although they might believe that the defendant did not exercise due care in the management of its car after it saw the plaintiff upon the track, yet they must find for the defendant if they believed that the plaintiff, in the exercise of reasonable care by watching the approaching car and hastening across, could have crossed the track before the car reached him, and failed to do so.

Instruction “F” is, therefore, erroneous in the respect complained of, and that error is not cured by instruction Ho. 6, in which there is a correct statement of the law upon that question. Where two instructions are inconsistent with or contradict to each other, it is impossible to say whether the jury were controlled by the one or the other. *Va., &c. Wheel. Co.*v. *Chalkley,*98 Va. 62, 66, 34 S. E. 976 ; *N. & W. Rwy. Co.*v. *Mann,*99 Va. 180, 187, 37 S. E. 849; Sackett on Instructions (2d ed.), 25; Blashfield on Instructions, secs. 73 and 74.

The counsel of the plaintiff insist that, although the court be of opinion that instruction “E” was erroneous, the judgment should not be reversed on that account, because upon the whole *322ease it is clear that no other verdict conld have been properly-found.

It is the well-settled rule of this court to uphold a verdict notwithstanding the jury have been erroneously instructed, if the record shows clearly that upon correct instructions the jury could not have properly found any other verdict. *Richmond Rwy. Co.*v. *Garthright,*92 Va. 627, 24 S. E. 267, 32 L. R. A. 220, 53 Am. St. Rep. 839; *Wright*v. *Independence Bank,*96 Va. 728, 732, 32 S. E. 459, 70 Am. St. Rep. 889.

But this rule has no application in a case like this, where the evidence on the material questions involved is so conflicting that if the verdict had been in favor of the defendant the court could not have disturbed it.

The evidence of the defendant, if true, showed that it was not running its car at a greater rate of speed than it had the right to run it; that the car was properly equipped and in charge of a competent motorman; that proper warnings of its approach to the crossing were given; that the car was within eight to fifteen feet of the plaintiff, who knew of its approach, when he stepped on the track, and that the brakes were applied at once; and that running as it was, from six to eight miles an hour, the car could not be stopped under twenty-five feet.

With such evidence in the case, we cannot say that no other verdict than that which was rendered could have been properly found by the jury.

Having reached the conclusion that the giving of instruction “F” was error for which the judgment complained of must.be reversed, it is unnecessary to consider the other assignment of error as to the sufficiency of the evidence to sustain the verdict.

The judgment must be reversed, the verdict set aside, and the cause remanded for a new trial to be had not in conflict with the views expressed in this opinion,

*Reversed.*