Basilotta v. Barker

283 S.E.2d 220, 222 Va. 683, 1981 Va. LEXIS 358

• Court: Supreme Court of Virginia
• Decided: October 16, 1981
• Docket: Record No. 791503
• Status: Published

Opinions

STEPHENSON, J.,

delivered the opinion of the Court.

Lee L. Basilotta brought this suit against Vivian M. Barker, seeking recovery for injuries sustained when Barker’s car struck Basilotta as he attempted to cross a street. The circuit court granted Barker’s motion to strike Basilotta’s evidence and entered judgment for Barker. The only issue raised in this appeal is whether the trial court erred in concluding that Basilotta was guilty of contributory negligence as a matter of law.

Basilotta was injured around 12:10 a.m. on January 28, 1978, while crossing East Ocean View Avenue at its intersection with Chesapeake Street. Traffic at this intersection is controlled by a traffic light. At this point, East Ocean View Avenue has five lanes: two westbound lanes, two eastbound lanes and one left-turn lane for both eastbound and westbound traffic.

Prior to stepping from the northwest curb, Basilotta and a friend determined the traffic light was red for vehicles traveling on East Ocean View Avenue and green for pedestrians and traffic traveling on Chesapeake Street. They looked to their left and saw no vehicles approaching. To their right, they saw only the eastbound Barker vehicle which was at the next intersection, a distance estimated to be about 500-600 feet away from them. They began crossing East Ocean View Avenue in the area that would have been the prolongation of the sidewalk along the west side of Chesapeake Street.

After beginning to cross the street, neither Basilotta nor his friend looked at the traffic light to see if it had changed color.

* While in the area of the left-turn lane, they looked to their right and observed that Barker’s car was approximately 300 feet away in the inside eastbound lane. When Basilotta next saw Barker’s vehicle it was “bearing down” on him, approximately two car lengths away. He testified that he had no opportunity to get out of its path. Basilotta was struck in the inside eastbound lane by the front of Barker’s car, knocked into the air and thrown across the intersection.

Ordinarily, negligence, whether primary or contributory, and proximate cause are issues to be decided by a jury. This is the case because such issues “are almost always ones of fact, and the jury is peculiarly constituted in our system of law to try such questions.” Phillips v. Stewart, 207 Va. 214, 217, 148 S.E.2d 784, 786 (1966). Moreover, “whether a pedestrian, who is struck by an automobile . . . , at or near a regular street crossing . . . , exercised proper care, or has been guilty of contributory negligence which will defeat his recovery for injuries sustained by such collision, is almost invariably one for the jury.” Danner v. Cunningham, 194 Va. 142, 146-47, 72 S.E.2d 354, 357 (1952). (Emphasis added.)

Arney v. Bogstad, 199 Va. 460, 100 S.E.2d 749 (1957), presented facts similar to the present case. There we held that a pedestrian crossing with the traffic light in his favor has the right-of-way. This right-of-way continues if the light changes while the pedestrian is crossing, and it is the duty of the motorist to “change his ‘course, slow down, or come to a complete stop if necessary to permit’ ” the pedestrian to cross in safety. Id. at 465, 100 S.E.2d at 752. See also Reese v. Snelson, 192 Va. 479, 65 S.E.2d 547 (1951) (rev’d. on other grounds); Bethea v. Virginia Elec. etc., Co., 183 Va. 873, 33 S.E.2d 651 (1945).

Of course, one may not act in complete disregard for his own safety, blindly relying on the fact that he has the right-of-way. It was for the jury to decide if this is what Basilotta did.

On a motion to strike, the evidence must be viewed in the light most favorable to the plaintiff. Trail v. White, 221 Va. 932, 275 S.E.2d 617 (1981). Viewing the evidence here in this light, we believe reasonable men could differ on the question whether Basilotta was negligent. Therefore, the trial court erred in striking the evidence and entering judgment for Barker.

Accordingly, the judgment of the trial court will be reversed and the case remanded for a new trial consistent with the views expressed herein.

Reversed and remanded.

A witness testified that the light changed when Barker’s car was approximately 160 feet from the intersection.