Bassett & Co. v. Wood

• Decision Date: 22 April 1926
• Parties: W. B. BASSETT AND COMPANY v. ED. L. WOOD, ADMINISTRATOR.
• Court: Virginia Supreme Court

Page 654

146 Va. 654

W. B. BASSETT AND COMPANY v. ED. L. WOOD, ADMINISTRATOR.

Supreme Court of Virginia, Richmond.

April 22, 1926.

1. NEGLIGENCE — Contributory Negligence — Conclusiveness of Verdict of Jury — Instructions — Appeal and Error — Conflicting Evidence. — In the instant case, an action for death by wrongful act, the defense was based principally upon the contributory negligence of decedent. The main facts in the case were conflicting, therefore, the verdict of the jury for the plaintiff conclusively established the negligence of the defendants and that the decedent was free from contributory negligence.

Held: That the verdict and judgment for plaintiff must stand unless the lower court erred in its instruction to the jury.

2. EVIDENCE — Witnesses — Variation in the Testimony of a Party's Witnesses — General Rule. — As a general rule, when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him. In such a situation he would be entitled to have the jury instructed upon his contention, or if there were a demurrer to the evidence, the facts would have to be regarded as established in accordance with the testimony most favorable to him.

3. EVIDENCE — Witnesses — Variation in a Party's Oun Testimony. — Rules that where witnesses for a party vary in their statements, the party has the right to ask the court or jury to accept as true the statements most favorable to him, does not apply to the testimony which the party gives himself. No litigant can successfully ask a court or jury to believe that he has not told the truth. His statement of fact and the necessary inferences therefrom are binding upon him. He cannot be heard to ask that his case be made stronger than he makes it, where it depends upon facts within his own knowledge and as to which he has testified.

4. ORDINANCES — Statutes — Violation of Ordinance or Statute as Negligence — Proximate Cause. — It is settled law in Virginia that the violation of an ordinance or statute does not make the violator guilty of negligence for which damages may be recovered unless the act was the proximate cause of the injury. The doctrine in that respect being that the law regards the immediate or proximate cause which directly produces the injury, and not the remote cause which may have antecedently contributed to it. In order for the negligence of the party violating the ordinance to be contributory or concurring it must have some immediate causal connection, or be the proximate cause of the injury.

5. ORDINANCES — Statutes — Violation of Ordinance or Statute as Negligence — Proximate Cause. — If while one is negligent or in a state of negligence another negligently employs an independent force, which, availing itself of the occasion afforded by the former's negligence, works a harm not its natural and probable consequences, but an independent harm, the first negligence is not contributory to the second.

6. NEGLIGENCE — Last Clear Chance — Declaration — Pleading Last Clear Chance. — It is not necessary for the plaintiff in his declaration for damages for negligence to allege that his right of recovery is based upon the doctrine of the last clear chance, any more than it is necessary to negative contributory negligence, the plaintiff, if his evidence justifies, may reply by invoking the doctrine of the last clear chance, or that admitting the plaintiff was negligent is negligence was not the proximate cause of the injury.

7. INSTRUCTIONS — Contradictory Instructions. — The plaintiff is not entitled to contradictory instructions upon the same state of facts, where the evidence does not warrant one of the instructions.

8. NEGLIGENCE — Contributory Negligence — No Recovery where there is Concurring Negligence. — There is really no distinction between negligence in the plaintiff and negligence in the defendant, and where their negligence concur to produce the injury there can be no recovery.

9. NEGLIGENCE — No Recovery where there is Concurring Negligence — Exception to the General Rule — Proximate and Remote Cause. — The general rule that there can be no recovery where the negligence of the plaintiff and defendant concur to produce the injury, is subject, however, to the qualification that where the negligence of the defendant is the proximate cause of the injury, and that of the plaintiff only remote cause of the injury, the plaintiff may recover, notwithstanding his negligence.

10. NEGLIGENCE — Proximate and Remote Cause. — The law regards the immediate or proximate cause which directly produced the injury, and not the remote cause which may have antecedently contributed to it.

11. NEGLIGENCE — Last Clear Chance — Last Clear Chance of Defendant — Proximate Cause. — If, after the defendant knew, or in the exercise of ordinary care ought to have known, of the negligence of the plaintiff, it could have avoided the accident, but failed to do so, the plaintiff can recover. In such case the subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negligence of the plaintiff.

12. LAST CLEAR CHANCE — Application of the Doctrine — Evidence in the Particular Case Under Trial. — Whether the doctrine of the last clear chance applies, and what facts or circumstances must be proven by the plaintiff's testimony in order to make that doctrine applicable, depends upon the evidence in the particular case under trial.

13. AUTOMOBILES — Accident at Street Crossing — Instructions — Contributory Negligence of Plaintiff — Duty of Defendant — Last Clear Chance — Case at Bar. — In the instant case, an action for death by wrongful act, plaintiff's decedent was killed by defendant's car which left the line of traffic to pass another car. Defendant testified that plaintiff's decedent was "jay walking." Instructions asked for defendant practically conveyed to the lay mind that if the decedent was negligent and the driver of the truck was negligent there could be no recovery.

Held: That these instructions ignored the rule that decedent's negligence must have been the proximate cause of the accident and were properly amended by the court adding that there could be no recovery unless defendant could, by exercise of ordinary care, have discovered decedent's peril and avoided the accident.

14. AUTOMOBILES — Turning Out of Line of Traffic to Pass Another Car — Duty of Driver — Case at Bar. — In the instant case plaintiff's intestate was struck and killed by defendant's truck while standing in the street waiting for traffic to pass so that she might continue across. Defendant turned out of the line of traffic to drive around the car in front of him and did not discover the decedent's peril until he was within three feet of her.

Held: That defendant should not have driven out of the line of traffic without warning in a public street unless he knew that he could do so without injury to others.

15. NEGLIGENCE — Last Clear Chance — Exercise of Care by Plaintiff — Sudden Emergency — Case at Bar. — The law imposes upon the plaintiff the duty to exercise reasonable care to avoid injury from the negligence of the defendant under circumstances that show such action was reasonable. But in the instant case plaintiff's decedent did not see defendant's truck which struck and killed her until within three feet of her, when defendant blew his horn, and from her screaming it appeared that defendant's negligence had placed her in such sudden peril and alarm that the law did not hold her negligent for failure to act reasonably under such sudden emergency, and the legal duty to prevent injury to herself by taking advantage of the last clear chance did not apply.

16. AUTOMOBILES — City Ordinance — Right of Way of Pedestrians — Crossing Street between Crossings — Case at Bar. — In the instant case, an action for death of plaintiff's intestate who was struck by a truck of defendants while crossing a street, defendant asked for an instruction that told the jury that a city ordinance provided that "between street crossings all vehicles shall have the right of way over pedestrians," and that if plaintiff's intestate undertook to cross the street between crossings she was guilty of contributory negligence.

Held: That this instruction was erroneous and should not have been given.

17. STREETS AND HIGHWAYS — Right of Pedestrian and Vehicles — Pedestrian Crossing Street between Crossings. — Ordinances providing that vehicles shall have the right of way over pedestrians between intersections of streets with other streets must be construed reasonably and according to their intent, which is to prevent the movement of traffic from being obstructed, so that when a pedestrian and vehicle approach, at the same time the same point, the former crossing the street, and the latter going forward, the ordinance requires the pedestrian to stop and give the right-of-way instead of stopping the vehicle. But the pedestrian has equal rights with the vehicles in the use of the street and the pedestrian's right yields to the vehicle only when necessity arises.

18. LAST CLEAR CHANCE — Application of the Doctrine — Negligence of Both Parties Contributing to Injury. — The doctrine of last clear chance strictly speaking applies only to those cases where the negligence of the parties contribute or concur to cause injury, but before damage is inflicted, one or other of the parties has time and opportunity to avoid the injury and fails to do so. This latter negligence is the supervening cause or the last clear chance.

Error to a judgment of the Circuit Court of the city of Norfolk, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

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