Perkins v. Carr

313 S.E.2d 372, 227 Va. 16, 1984 Va. LEXIS 262

• Court: Supreme Court of Virginia
• Decided: March 9, 1984
• Docket: Record No. 811585
• Status: Published

Opinions

CARRICO, C.J.,

delivered the opinion of the Court.

The plaintiff, Julia Ware Perkins, filed in the court below a motion for judgment against the defendant, Odell Stephens Carr, seeking damages for personal injuries sustained in an automobile accident. In a trial before a jury, the trial court struck the evidence at the conclusion of the plaintiffs case, holding that she was guilty of contributory negligence as a matter of law. The court entered final judgment in favor of the defendant.

Stated in the light most favorable to the plaintiff, the evidence shows that the accident occurred at the intersection of Routes 603 and 1808 in the Town of Windsor between 6:30 and 7:00 p.m. on June 18, 1980. Route 603 is a through street running generally east and west. Route 1808, which the trial court found was the less important street, is only,one block long and intersects Route 603 from the north, forming a “T” intersection. Both roads are paved and two lanes wide. No signs or other traffic signals controlled the intersection.

The plaintiff was proceeding west on Route 603, and the defendant was travelling south on Route 1808. Both drivers were operating within the speed limit. When the plaintiff was fifty feet from the intersection, she first saw the defendant, who was then thirty feet from the intersection. The defendant failed to see the plaintiff and entered the intersection, without stopping, at about the same time the plaintiff entered the intersection. Although the plaintiff applied her brakes and veered to the left, she was unable to avoid the defendant, and the two vehicles collided in the intersection.

On appeal, the sole question is whether the trial court erred in striking the plaintiff’s evidence. The determination of this question turns on whether the trial court properly held that the defendant, as the driver on the right, had the right-of-way even though the roadway on which she approached the intersection was of lesser dignity than the street travelled by the plaintiff.

The parties debate the applicability of Code § 46.1-221. With certain exceptions not relevant here, this Code section provides that “when two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right unless a ‘Yield Right-of-Way’ sign is posted.”

We interpreted Code § 46.1-221 in King v. Eccles, 209 Va. 726, 167 S.E.2d 349 (1969), which involved an accident at an uncontrolled intersection in Portsmouth. The intersection was formed by a major thoroughfare and a side street. We held that the driver on the right was entitled to the right-of-way under Code § 46.1-221 even though he approached the intersection on the less important side street.

The plaintiff argues, however, that King is inapposite because it involved a through or cross intersection, and not a “T” intersection, as is involved here. The plaintiff maintains that Code 46.1-221 was not intended to regulate a “T” intersection, “where the driver on the leg of the ‘T’ must turn left or right.”

We disagree with the plaintiff. In plain terms, Code § 46.1-221 applies to “an intersection,” meaning in this statutory context that the driver on the right has the right-of-way at any intersection, unless a yield sign is posted. The section makes no distinction between through or cross intersections on the one hand and “T” intersections on the other.

The plaintiff argues further that Code § 46.1-190(j) gave her the right-of-way. This section states in part that a person shall be guilty of reckless driving if he fails “to bring his vehicle to a stop immediately before entering a highway from a side road when there is traffic approaching upon such highway within five hundred feet of such point of entrance.” A right-of-way exists, however, only if expressly created by statute. Code § 46.1-190(j) does not create a right-of-way in favor of a driver “approaching upon [a] highway . . . unless a ‘Yield Right-of-Way’ sign is posted.” No “Yield Right-of-Way” sign or other signal was posted at the intersection involved in the present case.

The plaintiff argues next that she was entitled to the right-of-way under the provisions of Code § 46.1-216. In pertinent part, this section states that “[e]very driver who intends to . . . turn or partly turn from a direct line shall first see that such movement can be made in safety” and shall give a proper signal “whenever the operation of any other vehicle may be affected by such movement.” These provisions, however, establish no right-of-way for the benefit of the “other vehicle . . . affected by such movement.”

Finally, the plaintiff argues that Code § 46.1-222 granted her the right-of-way. This section provides that “[t]he driver of a vehicle, intending to turn to the left within an intersection . . . shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard” (emphasis added). While there was no evidence indicating which direction the defendant intended to take, Code § 46.1-222 is inapplicable in any event; the plaintiffs vehicle was not approaching the defendant “from the opposite direction,” as required before the Code section becomes operative.

In King, we took note of the view that the vehicle on the more important of the roadways forming an intersection should be granted the right-of-way, without regard to that vehicle’s position on the left or right. We said that, while “[t]he reasoning has appeal, ... it runs head-on into [Code § 46.1-221].” 209 Va. at 729, 167 S.E.2d at 351. We observed that if the rule “should not be [as stated in Code § 46.1-221], the correction must be made by the legislature, not by the courts.” Id. And we concluded by saying that “[i]n the absence of such an exception in the statute, there is no warrant for a favoring of the more important road over a less important road.” Id.

Fifteen years have passed since King was decided, and yet the General Assembly has not made any change in Code § 46.1-221. The present case is indistinguishable from King, except that the accident involved there occurred at a cross intersection in a city, while the one involved here occurred at a “T” intersection in a town. But these are distinctions without a difference; hence, King controls here and requires affirmance of the trial court’s holding that the plaintiff was guilty of contributory negligence as a matter of law.

The trial court also held as a matter of law that the plaintiffs contributory negligence was a proximate cause of the accident, but the plaintiff has not assigned error to this holding. Under Rule 5:21, “no error not . . . assigned will be admitted as a ground for reversal of a decision below.”

For the reasons stated, the judgment of the trial court will be affirmed.

Affirmed.