Anderson v. Payne, Record No. 3479.

CourtSupreme Court of Virginia
Citation189 Va. 712
Docket NumberRecord No. 3479.
Decision Date20 June 1949

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189 Va. 712
Record No. 3479.
Supreme Court of Virginia, Richmond.
June 20, 1949.

Present, All the Justices.

(1) Automobiles — Doctrine of Last Clear Chance Stated — Limitations on Application.

(2) Automobiles — Collision Between Automobile and Pedestrian — Last Clear Chance Held Not Applicable.

1. In Virginia the doctrine of last clear change applies not only where defendant actually saw, but also where, by the exercise of ordinary care, he ought to have seen, plaintiff in a situation of helpless or unconscious peril. But it is not to be so applied as to wipe out or supersede the defense of contributory negligence, or to be extended in its application to become in fact a rule of comparative negligence. The burden is on plaintiff to show that he was in a situation of peril of which he was unconscious or from which he could not by the exercise of reasonable care extricate himself, and that after his peril was discovered, or ought to have been discovered, defendant had a last clear chance to save him by the exercise of ordinary care. The obligation of observing the last clear chance is mutual and if plaintiff had an equal chance with defendant to avoid the accident, or the last clear chance to do so, he cannot recover. Defendant's chance must be the last chance and a clear chance; and if defendant's negligence is not the sole proximate cause of the accident, but plaintiff's negligence continues and is also a proximate, as distinguished from a remote, cause, defendant is not liable. Whether the doctrine applies is to be determined by the facts of the particular case.

2. Plaintiff was struck from the rear while walking on the edge of the paved portion of a street in violation of section 2154(126)(g) of the 1948 Supplement to the Code of 1942 (Michie). The accident occurred on a winter morning at dawn, when visibility was poor. Plaintiff did not hear defendant's car approaching, observe the light therefrom, or look to her rear at any time for traffic. Defendant testified that he was driving at a moderate speed, but admitted that although he had wiped his windshield the areas he attempted to clear of frost were not sufficiently large or clear to afford very good vision. It was clearly too late for him to avoid the collision after he saw plaintiff. While both parties were negligent, there was no merit in plaintiff's contention that the doctrine of last clear chance applied because defendant should have seen her. If it were conceded that defendant had a reasonable time and opportunity to save plaintiff after he should have discovered that plaintiff was in a position of unconscious peril, her negligence in being in that position continued as a proximate, not a remote, cause of the accident, since she always had as much chance to save herself as defendant had to save her. Such chance as he had never became a last clear chance because her chance was at least as real and available and as continuous as his.

Error to a judgment of the Circuit Court of the city of Clifton Forge. Hon. Earl L. Abbott, judge presiding.

The opinion states the case.

George A. Revercomb, Jr. and Edmund Revercomb, for the plaintiff in error.

J. H. Barger, J. C. Goodwin and William Goode, for the defendant in error.

BUCHANAN, J., delivered the opinion of the court.

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

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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 or 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,

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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 might indicate 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 oncoming 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

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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 oncoming 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 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 proof 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. Maryland 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), section 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...

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