Anderson v. Payne

Citation54 S.E.2d 82, 189 Va. 712
Case DateJune 20, 1949
CourtSupreme Court of Virginia

Error to Circuit Court of City of Gifton Forge; Earl L. Abbott, Judge.

Personal injury action by Mae B. Payne against Herman B. Anderson and others. To review an adverse judgment, the named defendant brings error.

Reversed, and judgment entered for defendant.



George A. Revercomb, Jr., Edmund Revercomb, Covington, for plaintiff in error.

J. H. Barger, J. C. Goodwin, William Goode, Clifton Forge, for defendant in error.

BUCHANAN, Justice.

The plaintiff, Mae B. Payne, was struck and injured by an automobile driven by the defendant, Anderson. She sued Anderson, James W. Dudding and Coca-Cola Bottling Company of Clifton Forge, Incorporated. The evidence was struck out as to the two last-named defendants and no exception was taken to that ruling. A verdict and judgment for $3,500 were obtained against Anderson, to whom this writ of error was granted. He assigns several errors, but the controlling issue is whether plaintiff had a right to recover under the doctrine of last clear chance. It is not contended that she was entitled to recover on any other theory.

Condensed and stated in the light most favorable to the plaintiff, the evidence establishes the following facts and circumstances:

Plaintiff was struck from the rear by defendant's automobile while walking on Rose street, which extends in a northerly and southerly direction in the city of Clifton Forge. The vehicular-traveled hard surface is fifteen feet wide and bordered on each side by dirt shoulders varying in width at different places. Due to unevenness of surface and grass, the shoulders are not very suitable for walking thereon, yet, for some two to three feet on each side of the hard surface they can be used by pedestrians.

At the northern end of the block in which the accident happened Pine street intersects, and at the southern end is Church street. About 7:10 o'clock a. m., on December 17, 1946, plaintiff was walking southwardly from Pine street along her right, or the western, side of Rose street toward Church street. She was on the hard surface about six to twelve inches from the dirt shoulder. She had walked along on the edge of the hard and vehicular-traveled portion of the street from Pine street and reached the center of the block when struck by the automobile of defendant. She states that since the shoulders of the street were rough and unfit for pedestrian travel, she walked on the right edge of the hard surface.

Immediately before the collision a truck of the Coca-Cola Bottling Company, driven by Dudding, had entered Rose street from Church street and was proceeding northwardly thereon along the eastern side of the hard surface and thus approaching plaintiff.

Defendant, beside whom was seated his father, had driven down Rose street from a point north of Pine street, which he had just crossed, and in proceeding southwardly approached plaintiff. He was also meeting the northbound truck.

During the night, frost had accumulated on the windshield of defendant's car. About 7:00 o'clock a. m, before he and his father left their home, he wiped the windshield, but testimony discloses that the areas attempted to be cleared of frost in front of the driver and his father were not sufficiently large or clear to afford very good vision.

The morning was cloudy, cold and dreary. Some witnesses say it was a little foggy and visibility thus impaired. All witnesses agreed upon the fact that it was shortly after dawn and as the two vehicles, one going north and one south, approached the plaintiff, both were burning their headlights, as was a car that arrived on the scene a moment later. A fourth car, driven by one of the State police, who responded to a call to the scene and arrived about fifteen or twenty minutes after the collision, was also using headlights. In short, visibility was distinctly poor at the time of the accident, and though objects could be seen by the light of dawn, prudence required use of headlights on motor vehicles.

As defendant and his father crossed Pine street on their southbound course along Rose street, they saw the lights of the truck which had just entered that block from Church street. They state that their car was being driven at from ten to fifteen miles an hour and there is nothing to contradict this evidence of its operation at that lawful and moderate speed, unless the distance it went after the accident mightindicate otherwise. They also say that as their automobile and the truck approached each other, the lights from the other vehicle interfered with their vision, but there is testimony that with the aid of the breaking day, the lights of the on-coming truck should not have materially affected their ability to see the plaintiff ahead of them.

Just before his vehicle and the truck passed, defendant and his father saw plaintiff on the hard surface a few feet ahead and defendant undertook to swerve his car to the left to avoid her. Due to her extremely close and dangerous proximity when first seen, this attempt was unsuccessful and she was hit by the right front fender. His car continued on, collided with and scraped the left side of the truck and then proceeded on about sixty feet from where it struck plaintiff before coming to rest.

Plaintiff says that as she walked down the right side of the street, she saw the oncoming truck with lights burning but they did not interfere with her vision and she could see other objects quite well by the coming daylight. She did not hear defendant's car approaching, observe the light therefrom, or look to her rear at any time for traffic. When in the middle of the block, almost abreast of the truck and oblivious of the car behind her, she was struck by defendant's vehicle.

Upon resolving all just inferences in favor of plaintiff, we think the evidence was sufficient to establish negligence on the part of defendant. It was his duty to keep a proper lookout, Voight v. Reber, 187 Va. 157, 46 S.E.2d 15, and the jury could have concluded that he was not doing so from the fact that he did not see the plaintiff until he was right on her. Also, when visibility was poor he undertook to drive his car without having properly cleared the frost from his windshield, and because of that circumstance could not, or did not, see plaintiff ahead of him. Driving under such conditions is negligence. State of Maryland, for Use of Joynes v. Coard, 175 Va. 571, 9 S.E.2d 454. It is also clear that his negligence was a contributing cause of the injury.

The following facts are, however, conclusively established by the testimony: (a) The plaintiff, in violation of the statute, Code, 1942 (Michie), § 2154(126) (g), 1948 Cum.Supp., walked along her right-hand side of the hard surface with her back to oncoming traffic, at a time and under such circumstances as to render it distinctly probable that she might not be seen by a driver approaching from the rear; (b) defendant and his father saw her about the same time, but at that moment the car was only a few feet from her and so close that defendant was unable to avoid striking her, though he made efforts to prevent the mishap.

Plaintiff insists that notwithstanding her negligence in walking along the wrong side of the street, the defendant, in the exercise of ordinary care, should have seen her in time to avoid striking her, and that, therefore, the doctrine of last clear chance applies.

Defendant asserts that the doctrine is not applicable because the plaintiff was guilty of contributory negligence which proximately caused or contributed to her injuries, in that she knowingly walked on the wrong side of the road in negligent disregard of potential danger, and that at any time before the mishap she could have avoided it by the exercise of ordinary care. He contends, in other words, that the evidence and all just inferences from it, viewed in the light most favorable to the plaintiff, discloses negligence on her part which never became remote but actively continued down to the time of the collision and effectively contributed to it, thus making a case to which the last clear chance doctrine did not apply.

Clearly it was too late for the defendant to avoid the collision after he actually saw the plaintiff. But in Virginia it has long been established, and affirmed in repeated decisions, that the doctrine of last clear chance applies not only where the defendant actually saw, but also where, by the exercise of ordinary care, he ought to have seen, the plaintiff in a situation of helpless or unconscious peril.

In Barnes v. Ashworth, 154 Va. 218, 153 S.E. 711, former cases were reviewed and held to establish the doctrine as applicable in this State not only to cases in which such peril of the plaintiff was actually known, but also to cases where it would have been known if the defendant had exercised reasonable care to maintain a proper lookout, and was under a legal duty to do so. This is the rule that has been recognized and followed in this jurisdiction in all subsequent cases, without exception. Keeler v. Baumgardner, 161 Va. 507, 171 S.E. 592; Frazier v. Stout, 165 Va. 68, 181 S.E. 377; Dobson-Peacock v. Curtis, 166 Va. 550, 186 S.E. 13; Crawford v. Kite, 176 Va. 69, 10 S.E.2d 561; Yellow Cab Corp. v. Henderson, 178 Va. 207, 16 S.E.2d 389; Harris Motor Lines v. Green, 184 Va. 984, 37 S.E. 2d 4; 171 A.L.R. 359; Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319.

"In short, " said the late Chief Justice Holt in State of Maryland, for Use of Joynes v. Coard, supra, "he is charged with what he saw and with what he should have seen. The antecedent negligence of a plaintiff does not of itself preclude his recovery. Starkly stated, the reason for the rule is this: One cannot kill another merely because he is negligent." 175 Va. at page 571, 9 S.E.2d at page 458.

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