Whittle, J.,
delivered the opinion of the court.
On the afternoon of March 3, 1899, plaintiff’s intestate, Leroy L. Peed, while attempting to cross Crawford street at or near its intersection with Columbia street, in the city of Portsmouth, was struck by a passing car of the defendant company, receiving injuries from which he died. Thereupon the defendant in error instituted this action against the plaintiff in error to recover damages for the alleged negligent killing of his intestate, which resulted in the judgment now under review.
The declaration contains two counts. The first count alleges that the accident was due to the negligence of the defendant in running its cars “at such a great, high and rapid rate of speed as to become thereby unmanageable and incapable of being stopped when occasion for stopping the same should arise;” whilst the second count attributes the accident to the negligence of the defendant in failing to equip its cars with suitable fenders.
At the trial, after the evidence had closed, the defendant moved the court to strike out an ordinance of the city of Portsmouth with respect to car-fenders on the ground that there was no evidence tending to show a failure of duty on the part of the defendant in that regard, which motion the court sustained. Whereupon the defendant submitted a further motion, that the jury be instructed to disregard the second count of the declaration, as there was no evidence to support it, which motion thó court overruled. Sustaining the second motion was a corollary to granting the first, and the court erred in overruling it.
The jury returned a general verdict, and it cannot be affirmed that their finding was not influenced by the ruling of the court with respect to the second count, notwithstanding the fact that there was no evidence to sustain it. The court, in the presence of the jury, had refused to instruct them to disregard the count, and they may naturally have interpreted that ruling to mean that they must regard it.
[672]*672The only remedy which a defendant has in such case is to move the court to instruct the jury to disregard the unsustained count. Being unobjectionable in form, it is not amenable to demurrer ; and the defendant cannot demur to the evidence, where, as in this case, there is another count in the declaration with some evidence tending to uphold it. The rationale for disregarding such a count is the same as in case of a variance between the evidence and allegation—both rest upon the fact of a failure to prove what is alleged. Roe v. Crutchfield, 1 Hen. & Mun. 361; Bush v. Campbell, 26 Gratt. 431; B. & O. Ry. Co. v. Whittington, 30 Gratt. 810; Richmond Ry. & Elec. Co. v. Bowles, 92 Va. 738, 24 S. E. 388; Eckles v. N. & W. Ry. Co., 96 Va. 69, 25 S. E. 545; Richmond Ry. & Elec Co. v. West, 100 Va. 184, 40 S. E. 643; West v. Richmond Ry. & Elec. Co., ante p. 339, 46 S. E. 33.
While that error alone might not warrant a reversal, the ruling involves a question of practice, which ought to be settled.
The next assignment of error relates to the ruling of the court on instructions.
The objection to the first instruction, given at the instance of the plaintiff, is that it was not justified by the pleading. As remarked, the declaration sets out two grounds of negligence, namely, excessive speed and a defective fender. There being no evidence to support the second charge, the only ground upon which the plaintiff could recover, if at all, was for the alleged excessive speed; yet the instruction injected into the case a new element, and told the jury that either a failure to give warning of the approach of the car, or its excessive speed, would entitle the plaintiff to recover. Under the authorities cited above, the court erred in instructing the jury that they could find a verdict on a case not made by the declaration. It should be observed, however, in that connection that in case of a variance between the evidence and allegations, the usual and correct practice is to object to the evidence when offered, or move to exclude it. Atten[673]*673tion is thus called to the discrepancy and opportunity afforded the trial court to meet the emergency in a proper case in one of the modes prescribed by section 3384 of the Code.
Plaintiff’s second instruction is subject to the same objection as the first; and that part of the instruction predicated on the jury’s belief from the evidence that the deceased used ordinary care in looking and listening before attempting to cross Crawford street, is liable to the further objection that there wTas no evidence on which to base it.
The third instruction told the jury that failure to look for an approaching car by a person about to cross a street railway track, especially at a street crossing, is not negligence as a matter of law, the street-car having no superior right to that of a pedestrian, the question being whether a prndent person, acting prudently, would have thought it necessary to do so.
While the qualifying language lessens the vice of the instruction, it does not entirely remove its misleading tendency. The doctrine on the subject is thus stated in 2 Shearman & Redfield on the Law of Negligence (5th Ed.) at pp. 869-870:
“While, generally speaking, one who is about to cross a street railroad should both look and listen for cars, this is not an inflexible rule; nor is it to be enforced with any such strictness as in the case of an ordinary steam railroad. It is not negligence, as a matter of law, to omit to do so. The question is, whether a prudent man, acting prudently, would have thought it unnecessary to do so.”
The above statement of the law is quoted with approval by this court in the recent case of Bass v. Norfolk Ry. Co., 100 Va. 1, 40 S. E. 100. The statement of a part of the rule, without the context, was calculated to mislead the jury, and, therefore, ought not to have been given.
The remaining instruction of the plaintiff, to which objection is made, relates to the measure of damages. The instruction told the jury that “if they shall find for the plaintiff, in esti[674]*674mating his damages, they may take into consideration compensation for the loss of his care, attention and society to his family, together with such sum as they may deem fair and just by way of solace and comfort to them for the sorrow, suffering and mental anguish occasioned by his death, not to exceed, however, the sum of $10,000.”
The evidence shows that the deceased was sixty-four years of age; that he left a family consisting of a wife, three sons and two daughters, and that he was a ship-caulker by trade, with practically constant employment. This evidence was sufficient to warrant the court in giving the instruction. Baltimore & Ohio R. R. Co. v. Noel's Admr., 32 Gratt. 394.
The next assignment of error is the refusal of the trial court to give the third instruction asked for by the defendant, and the modification of that instruction.
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Whittle, J.,
delivered the opinion of the court.
On the afternoon of March 3, 1899, plaintiff’s intestate, Leroy L. Peed, while attempting to cross Crawford street at or near its intersection with Columbia street, in the city of Portsmouth, was struck by a passing car of the defendant company, receiving injuries from which he died. Thereupon the defendant in error instituted this action against the plaintiff in error to recover damages for the alleged negligent killing of his intestate, which resulted in the judgment now under review.
The declaration contains two counts. The first count alleges that the accident was due to the negligence of the defendant in running its cars “at such a great, high and rapid rate of speed as to become thereby unmanageable and incapable of being stopped when occasion for stopping the same should arise;” whilst the second count attributes the accident to the negligence of the defendant in failing to equip its cars with suitable fenders.
At the trial, after the evidence had closed, the defendant moved the court to strike out an ordinance of the city of Portsmouth with respect to car-fenders on the ground that there was no evidence tending to show a failure of duty on the part of the defendant in that regard, which motion the court sustained. Whereupon the defendant submitted a further motion, that the jury be instructed to disregard the second count of the declaration, as there was no evidence to support it, which motion thó court overruled. Sustaining the second motion was a corollary to granting the first, and the court erred in overruling it.
The jury returned a general verdict, and it cannot be affirmed that their finding was not influenced by the ruling of the court with respect to the second count, notwithstanding the fact that there was no evidence to sustain it. The court, in the presence of the jury, had refused to instruct them to disregard the count, and they may naturally have interpreted that ruling to mean that they must regard it.
[672]*672The only remedy which a defendant has in such case is to move the court to instruct the jury to disregard the unsustained count. Being unobjectionable in form, it is not amenable to demurrer ; and the defendant cannot demur to the evidence, where, as in this case, there is another count in the declaration with some evidence tending to uphold it. The rationale for disregarding such a count is the same as in case of a variance between the evidence and allegation—both rest upon the fact of a failure to prove what is alleged. Roe v. Crutchfield, 1 Hen. & Mun. 361; Bush v. Campbell, 26 Gratt. 431; B. & O. Ry. Co. v. Whittington, 30 Gratt. 810; Richmond Ry. & Elec. Co. v. Bowles, 92 Va. 738, 24 S. E. 388; Eckles v. N. & W. Ry. Co., 96 Va. 69, 25 S. E. 545; Richmond Ry. & Elec Co. v. West, 100 Va. 184, 40 S. E. 643; West v. Richmond Ry. & Elec. Co., ante p. 339, 46 S. E. 33.
While that error alone might not warrant a reversal, the ruling involves a question of practice, which ought to be settled.
The next assignment of error relates to the ruling of the court on instructions.
The objection to the first instruction, given at the instance of the plaintiff, is that it was not justified by the pleading. As remarked, the declaration sets out two grounds of negligence, namely, excessive speed and a defective fender. There being no evidence to support the second charge, the only ground upon which the plaintiff could recover, if at all, was for the alleged excessive speed; yet the instruction injected into the case a new element, and told the jury that either a failure to give warning of the approach of the car, or its excessive speed, would entitle the plaintiff to recover. Under the authorities cited above, the court erred in instructing the jury that they could find a verdict on a case not made by the declaration. It should be observed, however, in that connection that in case of a variance between the evidence and allegations, the usual and correct practice is to object to the evidence when offered, or move to exclude it. Atten[673]*673tion is thus called to the discrepancy and opportunity afforded the trial court to meet the emergency in a proper case in one of the modes prescribed by section 3384 of the Code.
Plaintiff’s second instruction is subject to the same objection as the first; and that part of the instruction predicated on the jury’s belief from the evidence that the deceased used ordinary care in looking and listening before attempting to cross Crawford street, is liable to the further objection that there wTas no evidence on which to base it.
The third instruction told the jury that failure to look for an approaching car by a person about to cross a street railway track, especially at a street crossing, is not negligence as a matter of law, the street-car having no superior right to that of a pedestrian, the question being whether a prndent person, acting prudently, would have thought it necessary to do so.
While the qualifying language lessens the vice of the instruction, it does not entirely remove its misleading tendency. The doctrine on the subject is thus stated in 2 Shearman & Redfield on the Law of Negligence (5th Ed.) at pp. 869-870:
“While, generally speaking, one who is about to cross a street railroad should both look and listen for cars, this is not an inflexible rule; nor is it to be enforced with any such strictness as in the case of an ordinary steam railroad. It is not negligence, as a matter of law, to omit to do so. The question is, whether a prudent man, acting prudently, would have thought it unnecessary to do so.”
The above statement of the law is quoted with approval by this court in the recent case of Bass v. Norfolk Ry. Co., 100 Va. 1, 40 S. E. 100. The statement of a part of the rule, without the context, was calculated to mislead the jury, and, therefore, ought not to have been given.
The remaining instruction of the plaintiff, to which objection is made, relates to the measure of damages. The instruction told the jury that “if they shall find for the plaintiff, in esti[674]*674mating his damages, they may take into consideration compensation for the loss of his care, attention and society to his family, together with such sum as they may deem fair and just by way of solace and comfort to them for the sorrow, suffering and mental anguish occasioned by his death, not to exceed, however, the sum of $10,000.”
The evidence shows that the deceased was sixty-four years of age; that he left a family consisting of a wife, three sons and two daughters, and that he was a ship-caulker by trade, with practically constant employment. This evidence was sufficient to warrant the court in giving the instruction. Baltimore & Ohio R. R. Co. v. Noel's Admr., 32 Gratt. 394.
The next assignment of error is the refusal of the trial court to give the third instruction asked for by the defendant, and the modification of that instruction.
The instruction told the jury that it is the duty of a person approaching a street-car track to exercise the care which Ordinarily prudent persons would exercise, and make such use of his faculties as ordinarily prudent persons would make use of under similar circumstances, and if such person is deaf, it is more incumbent upon him to exercise his sight; and if they believe from the evidence that the deceased failed to exercise such care, and his failure to do so contributed to the accident in which he met his death, and if they further find from the evidence that the moiorman saw, or by ordinary care might have seen, the decedent go upon the track or approach the track with apparent intention to cross it, and thereafter used ordinary care to stop the car, they must find for the defendant. The addendum of the court is italicized.
The instruction, as offered by the defendant, is a correct exposition of the law applicable to the evidence of the only witness for the plaintiff who saw the accident. The car was running-on Crawford street, which runs north and south, and is intersected by Columbia street, running east and west. The deceased, [675]*675who was proved to have been deaf, started from the southeast corner of Columbia street, and crossed that street, walking outside the track until he passed a delivery wagon in front of a store on the northeast corner, when, with his back toward the approaching car, and his head bent forward, he attempted to cross the track, and had not taken more than two steps before the car struck him. The witness further testified that he did not think the deceased was going on the track, and, if he had thought so, he would certainly have called out to save him. The testimony of several of the defendant’s witnesses also tends to sustain the theory that the deceased gave no indication of his intention to cross the track until the car was so close upon him that it could not be stopped in time to avert the accident. Upon this evidence the defendant was entitled to the instruction asked for without the qualification made to it by the court.
The same objection obtains to the court’s addition to defendant’s instruction number four. The amendment involves the principle embodied in the qualification to instruction number three, and, for the reason stated in that connection, ought not to have been given.
Instructions five and six, which the court rejected, told the jury that if they believed from the evidence that the deceased stepped in front of a moving car of the defendant when the car was so close upon him that a collision could not be avoided by the utmost care on the part of defendant’s employees, they must find for the defendant.
The evidence referred to tended to sustain that theory, and the court erred in refusing to give the instructions. Richmond Traction Co. v. Martin, ante, p. 205, 45 S. E. 886.
There are two other assignments of error which may be briefly noticed. The first assignment is to the admission of the testimony of a witness for the plaintiff, with respect to th'e speed of the car. His evidence was objected to as giving the rate of speed eighty feet from the scene of the accident, and because the [676]*676position of the witness, who was standing in his storehouse, twenty or twenty-five feet from the door, was not such as to enable him to determine the rate of. speed of the car.
Of both objections it may be remarked that they affect the weight rather than the admissibility of the evidence. There is, therefore, no error in that assignment.
The remaining assignment is the refusal of the court to permit a witness, who had testified on a former occasion, to refresh his memory from the stenographer’s minutes of his testimony.
It was permissible to allow this reference to the minutes for the bona fide purpose of refreshing the memory of the witness, but not to contradict him. The rule in such case does not require that the paper should have been made by the witness. Harrison v. Middleton, 11 Gratt. 527, 544; 1 Greenleaf on Ev. (16 Ed. by Migmore), sec. 439c.
Eor the foregoing reasons the judgment of the trial court must be reversed and annulled, the verdict of the jury set aside, and the case remanded for a new trial to be had, not in conflict with the views expressed herein.
Reversed.