Lucas v. Craft

170 S.E. 836, 161 Va. 228, 1933 Va. LEXIS 314

• Court: Supreme Court of Virginia
• Decided: September 21, 1933
• Status: Published

Opinions

Holt, J.,

delivered the opinion of the court.

Under review is a judgment for the plaintiff who was run down and hurt by defendant’s automobile.

That accident occurred at the intersection of Boush and York streets in the City of Norfolk. They cross each other at right angles. Boush street runs north and south and York street east and west. On the afternoon of July 27, 1931, Miss Iola F. Craft, a teacher by profession, boarded a bus coming south on Boush street. That bus was followed by another passenger bus which in turn was followed by a truck loaded with brick owned by the defendant, H. M. Lucas, and driven by his servant. Miss Craft’s bus stopped by the bus stop station at said intersection, which station is on the west side of Boush street. Its south end is flush with the north side of York street. After getting off she walked around the front end of the bus and started across Boush street, intending to go to the Medical Arts building, which is on the northeast corner of these streets. As she passed her bus she looked to her left, which was north on Boush street, and saw nothing to indicate that it was not clear of approaching traffic. There was, however, a car coming east on York street—“there was an automobile coming from York street into Boush and I kind of halted myself for the car to pass and as I did the car struck me.” Mr. Brackett said: “I saw Miss Craft standing in the middle of the street and the truck bearing down on her.” Estimates as to how far she had gone past her bus vary, hut we think it may fairly be said that she was about the middle of Boush street when the accident occurred. The truck horn was out of repair and so was not sounded, and she says that she was unaware of its approach until the moment of impact.

We have seen that when her bus came down Boush street it was followed by another bus. When the first bus stopped at the bus station the following bus stopped in its rear, and since Miss Craft did not see the truck it is fair to assume that it was following bus No. 2 and was then obscured from vision by it.

For any truck to run down a woman standipg in the middle of an open street is almost necessarily negligence. Miss Craft was where she had a right to be. When she passed her bus she looked to the left and saw the way was clear, but she did see an automobile approaching and swinging to the right from York into Boush street. She did what any other prudent person would have done, “kind of halted” to see just how far this approaching car would swing out, for it is matter of common knowledge that cars in executing this movement do sometimes swing farther than they should.

Since we are dealing with a verdict and judgment it is plain that the evidence is sufficient to sustain it. We cannot as a matter of law say that the defendant was not guilty of negligence, and we cannot as a matter of law say that the plaintiff was guilty of contributory negligence.

At the conclusion of the plaintiff’s evidence, and again after all evidence for both parties had been introduced, the defendant moved the court to strike out the plaintiff’s evidence on the ground that she had failed to prove actionable negligence on the part of the defendant and was, according to her own testimony, guilty of contributory negligence as a matter of law. After the verdict the defendant moved the court to set aside the verdict on these grounds. Both motions were overruled. The trial court was right.

Errors are assigned because of instructions given and refused.

This is plaintiff’s instruction No. 2:

“The court instructs the jury that if you find from the evidence that Iola Craft started across Boush street at the intersection of York street before the truck of the defendant reached the intersection of Boush and York streets, you are instructed that she had the rigid of way over the said truck, and it was the duty of the driver of the sarnie: to either change his course, slow down, or come to a complete stop if necessary to permit the plaintiff to safely and expeditiously make the crossing, and if you find that on the occasion in question the plaintiff was exercising due care for her own safety and that the driver of the defendant’s truck disregarded his duty as above set out,, and that the same was the proximate cause of the plaintiff’s injury, you must find for the plaintiff.”

Exception was taken to this for these reasons: “This instruction assumes that the defendant saw the plaintiff before or at the time she was leaving the sidewalk when from all of the evidence this was impossible because the plaintiff herself as well as her witnesses testified that she could not see the truck and that this would of necessity corroborate the defendant’s testimony that the driver of the truck could not see the plaintiff until she stepped beyond the bus.”

All evidence is to the effect that the truck was going slowly, that the brakes were applied before the plaintiff was struck, and that it moved only two or three feet after the impact. The evidence of the truck driver is that Miss Craft “popped out” from the front of her bus into the path of his truck and that he did not know and could not have known of her presence at a time when it was possible to have avoided a collision.

Our statute defines the relative rights of pedestrians and motor vehicles at street crossings; it reads:

Acts 1926, ch. 474, section 73, as amended by Acts 1928, ch. 399, p. 1025:

“(a) The roadbeds of highways within cities and towns are primarily intended for vehicles, but pedestrians have the right to cross them in safety, and drivers of Street cars and vehicles shall exercise proper care not to interfere with such rights nor to injure them or their property.

“(b) When crossing highways or streets within incorporated towns or cities, pedestrians shall not carelessly or maliciously interfere with the orderly passage of vehicles and shall cross wherever possible only at intersections or cross-walks. Pedestrians in crossing any street at intersection with another street, shall at all times have the right of way over vehicles making right turns into street being crossed by such pedestrians.

“(c) At such intersection where no traffic officer is on duty pedestrians shall have the right of way over vehicles.

“(d) This shall not entitle the pedestrian to enter or cross the intersection regardless of approaching traffic, but shall be interpreted to require vehicles to change their course, slow down, or come to a complete stop if necessary to permit pedestrians to safely and expeditiously negotiate the crossing.” Code, section 2145 (73).

This instruction does not assume that the truck driver saw the plaintiff before or at the time she was leaving the sidewalk. It does say that she had the right of way. There was no traffic officer on duty and she did have the right of way and it was the truck driver’s duty to change his course:, slow down, or come to a complete stop if necessary to permit her passage in safety. The truck driver knew that the bus had stopped at a station stop and he should have known that it probably stopped to let off passengers who might intend to cross one of these intersecting streets. He also knew that if she intended to cross Boush street she could not be seen until she had cleared her bus. And so it was his duty, when he turned out to pass the stationary buses ahead, to remember this possibility.

The language and intent of the General Assembly is so plainly expressed in the statute that it needs no interpretation or construction. It means what is said. At intersecting streets where there are neither traffic lights nor traffic officers, the pedestrian has a superior right—that is, the right to cross from one side of the street to the other in preference or priority over vehicles—and drivers of vehicles must respect this right and yield the right of way to the pedestrian. The pedestrian’s right of way extends from one side- of the street to the other. It does not begin at any particular point in the intersection nor does it end at any particular point. It begins on one side of the street and extends until the pedestrian has negotiated the crossing. It is impossible, without nullifying the statute,. to divide this right of way into different stages in the intersection, yielding the right of way to the pédestrian at one point in the intersection and denying it at another, all at the time of negotiating the one crossing.

Instruction 2 properly told the jury how to apply this statute to the evidence in this case. It was plain, and no doubt the jury followed it, and upon it found against the defendant. We have no power to disturb that finding upon the point in question.

Any other conclusion would make the statute of little value. Heindl v. Perritt, 158 Va. 104, 163 S. E. 93; Virginia E. & P. Co. v. Blunt’s Adm’r, 158 Va. 421, 163 S. E. 329; Ebel v. Traylor, 158 Va. 557, 164 S. E. 721; Moore v. Scott, 160 Va. 610, 169 S.. E. 902, and Sawyer v. Blankenship, 160 Va. 651, 169 S. E. 551, decided at the late term of this court at Wytheville.

We follow these cases decided since our statute went into effect and not those which antedate it. Moore v. Scott, supra.

This instruction was given at the instance of the plaintiff:

“Instruction No. 3.

“The court instructs the jury that a person lawfully on a public street may rely on the exercise of reasonable care by the drivers of automobiles and trucks to avoid injury, until the contrary appears or in the exercise of ordinary care should appear, and that the plaintiff, Iola F. Graft, in attempting to and in crossing Boush street was not required as a matter of law to continuously look or listen for the approach of automobiles thereon, but she is under the duty of using reasonable care for her own safety under all circumstances, and if the jury believe from the evidence that the defendant was operating his truck on said street in a careless and negligent manner, and that the direct and proximate cause of the plaintiff’s, injury was such careless and negligent condubt -on the defendant’s part, and that the plaintiff was not guilty of negligence contributing to her injury, then the jury should find for the plaintiff.”

It was excepted to “upon the ground that it was the duty of the plaintiff to continuously look and listen where looking and listening would be effective and that she cannot relieve herself of her negligence by the failure of this duty on her part; and upon the further ground that the instruction assumes and charges too high a degree of care on the operator of an automobile.”

We are unable to see where it charges against a chauffeur an extraordinary degree of care. We have already considered that degree of care with which he is justly charged. It is said' in "substance that the court should have told the jury that it was Miss Craft’s duty to continue to look and listen. Presumably, it is meant that she should have continued to look to the left and listen.

All instructions should be read in the light of the evidence to which they apply. We have seen that when she passed the. front of her bus she did glance to the left and saw that the way was clear. Brackett says that when she was struck she was standing in the middle of the street, and she tells us that she had halted on account of that automobile which was turning from York street into Boush street.

In Moore v. Scott, supra, attention was called to the fact that the middle of the street is a zone of comparative safety. Ordinarily cars may be expected to pass to its right and left. Certainly it is the duty to look in one direction as well as in the other. In the instant case a car was swinging towards her and prudence required that she look to it as welLas down a street which had appeared to her just a moment before to be clear. In such circumstances she was not required as a matter of law to look continuously to the left. Heindl v. Perritt, supra.

The defendant tendered instruction No. 2, which was rejected by the court as tendered but was amended by it and given. The words italicized show what these amendments were:

“The court instructs the jury that the defendant had a right to assume that the plaintiff would not leave a place of safety and walk directly in front of a standing bus and into the path of the defendant’s moving automobile; until the contrary appears or by1 the exercise of ordinary care should appear, that the plaintiff is required to use the same degree of care as an ordinary prudent person would use, and if you believe from the evidence that the conduct of the plaintiff was not such as a person of ordinary care and prudence would use under the same similar circumstances, then the plaintiff was guilty of negligence and cannot recover of the defendant in this case, unless the defendant in the exercise of ordinary care had the last clear chance to avoid the accident, as explained in other instructions.”

To this instruction as given the defendant objected “upon the grounds hereinabove assigned.”

Just what was meant by this is not clear but we will assume that he objected to the injection of the doctrine of the last clear chance into the case. This instruction, as tendered, told the jury that she could not recover if she was guilty of contributory negligence. The theory of the plaintiff was that she was guilty of no negligence at all, but the court by its amendment said that even though she were guilty of negligence that would not preclude a recovery if the defendant saw or ought to have seen her position of peril in time to have avoided the accident.

There is evidence tending to show, as we have seen, that when struck, she was well out into the street, and had halted to watch the car approaching her from York street. When the truck came from behind the waiting buses it was going slowly, and if she had reached that point where her evidence tends to place her, a jury might have believed that there was still time in which to avoid an accident even though she had in fact been negligent. At the most she was but in a state of negligence (Bassett & Co. v. Wood, 146 Va. 654, 132 S. E. 700), and the failure of the truck driver to act was the proximate cause of her injury.

If the failure to stop was due to defective brakes, then 1he driver had no last clear chance; the accident was not due to the failure of the driver to act, but to some defect in the car. Such a defect would be evidence of primary negligence, while the driver, however alert, might be powerless to stop his car. He would have had no chance to do so, clear or otherwise. Gordon’s Adm’r v. Director General, 128 Va. 426, 104 S. E. 796; Barnes v. Ashworth, 154 Va. 218, 153 S. E. 711. But the driver made no such claim. ■ The emergency brakes were in good order, the foot brakes not so good. He said that after he applied the brakes “she rolled I guess about a foot or two,” and Driscoll, a defendant’s witness, said: “He stopped that truck quicker than I ever seen anybody stop before.” If the car only rolled a foot or two after the brakes were applied it could have been stopped in time had the driver been looking. Certainly a jury would have been warranted in so finding.

We say again that those rules which applied before the statute was enacted and when the rights of pedestrians and vehicles at crossings were co-equal, now have little application. Equally inapplicable are cases which deal with “jay-walkers” or those who cross in a block and not at a recognized street intersection. At established crossings where there is no traffic officer, pedestrians have the right of way.

There is no error in the judgment appealed from and it is affirmed.

Affirmed.