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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