Cofield v. Nuckles, s. 881265
| Decision Date | 12 January 1990 |
| Docket Number | Nos. 881265,881290,s. 881265 |
| Citation | 239 Va. 186,387 S.E.2d 493 |
| Parties | Shelton L. COFIELD v. Charles A. NUCKLES, Jr. Horace A. HURDLE v. Charles A. NUCKLES, Jr. Record |
| Court | Virginia Supreme Court |
Donnell P. Davis (Furniss, Davis, Rashkind & Saunders, Norfolk, on brief), for appellant, Cofield.
Robert E. Gillette, Suffolk, for appellee, Nuckles.
Benjamin P. Lynch, Jr. (Harris, Fears, Davis, Lynch & McDaniel, Norfolk, on briefs), for appellant, Hurdle.
Present: CARRICO, C.J., COMPTON, STEPHENSON, RUSSELL, WHITING, and LACY, JJ., and COCHRAN, Retired Justice.
The accident which gave rise to this cause of action occurred December 7, 1984, on Warwick Boulevard in Newport News, during rush-hour traffic. Warwick is a four-lane, east-west, one-way street. The northernmost lane, or curb lane, is delineated by a solid white line while the other three lanes are separated by broken lines. Charles A. Nuckles, Jr. and a co-worker were walking eastbound on the sidewalk along the south side of Warwick. To meet their ride home from work, they had to cross the street.
When Nuckles reached the intersection of Warwick and 47th Street, stopped vehicles blocked the pedestrian crosswalk across Warwick in all three travel lanes. Nuckles began to cross Warwick behind the second vehicle stopped in each of the lanes. He successfully crossed the first two lanes but his path was blocked in the third lane. Nuckles found an opening in front of the fourth vehicle in the third lane, a van driven by Horace A. Hurdle.
Nuckles stopped in front of the Hurdle van. Hurdle gave Nuckles three waving hand signals, and Nuckles proceeded to cross in front of the van. As he stepped beyond the van, he was struck by another van traveling west in the curb lane. The second van was driven by Shelton L. Cofield.
Nuckles brought this suit against Hurdle and Cofield to recover damages for injuries sustained as a result of the accident. At the conclusion of all the evidence, the trial court, holding that the curb lane was not a travel lane, instructed the jury that Cofield was negligent as a matter of law. The jury returned a verdict of $175,000 against both Cofield and Hurdle, upon which the trial court entered judgment.
On appeal, Cofield and Hurdle assign error to a number of the trial court's rulings. We will consider each assignment as it pertains to the actions of each party. We view the facts in the light most favorable to the prevailing party, Nuckles.
Cofield and Hurdle maintain that the trial court erred by refusing to hold that Nuckles was negligent as a matter of law because he violated statutory provisions relating to pedestrians. Specifically, Cofield and Hurdle cite former Code § 46.1-230(a) (1986 Repl.Vol.) 1 which states in pertinent part:
When crossing highways or streets, pedestrians shall not carelessly or maliciously interfere with the orderly passage of vehicles. They shall cross wherever possible only at intersections or marked crosswalks.
Under this statute, they argue Nuckles' failure to use the marked intersection constitutes negligence per se. Furthermore, Cofield asserts that Nuckles crossed the street in a manner which "carelessly or maliciously interfered with the orderly passage of vehicles," and violated the portion of former § 46.1-231(b) (1986 Repl.Vol.) 2 which prohibited a pedestrian from entering or crossing "an intersection in disregard of approaching traffic."
The evidence showed that bumper-to-bumper traffic on Warwick Boulevard was stopped and that it blocked the intersection Nuckles wished to use. He did not step into moving traffic when he began to cross the street. Even after Nuckles received the hand signals from Hurdle, he slowed his gait and attempted to look for approaching traffic while he stepped into the curb lane. This evidence presented a proper jury question regarding whether it was possible for Nuckles to cross at the intersection and whether his action disregarded traffic or carelessly or maliciously interfered with it.
Cofield also asserts that Nuckles violated former Code § 46.1-232 (1986 Repl.Vol.) 3 which states:
Pedestrians shall not step into that portion of a highway or street open to moving vehicular traffic at any point between intersections where their presence would be obscured from the vision of drivers of approaching vehicles by a vehicle or other obstruction at the curb or side, except to board a passenger bus or to enter a safety zone, in which event they shall cross the highway or street only at right angles.
This section applied to a pedestrian who stepped from an obscured position at the curb or side of the road into moving traffic. It is inapplicable here, where Nuckles initially stepped from a position where he could be seen by oncoming vehicles into stationary traffic stopped at a red light.
Based on the evidence presented, the trial court correctly refused to find Nuckles negligent as a matter of law for violation of former §§ 46.1-230, 46.1-231(b), or 46.1-232, and correctly declined to grant Instruction 22A. 4
Cofield also contends that Nuckles was negligent as a matter of law for failure to keep a proper lookout. Cofield points to the principle that if a pedestrian crosses a busy street "without looking, or, if looking, fails to see or heed traffic that is obvious and in dangerous proximity and continues on into its path, he is guilty of negligence as a matter of law." Hooker v. Hancock, 188 Va. 345, 356, 49 S.E.2d 711, 716 (1948). See also Bryan v. Fewell, 191 Va. 647, 62 S.E.2d 39 (1950).
Nuckles' testimony indicated that he was aware of the location and movement of the traffic prior to and while he crossed the street. When he crossed in front of Hurdle's van he "slowed down to a slow gate [sic] ... to look to my right but I never got to look." Three other witnesses testified that Nuckles attempted to look for traffic approaching in the curb lane. Based on this evidence, whether Nuckles failed to keep a proper lookout, and whether Nuckles saw Cofield's van approaching or was in a position to do so yet proceeded into its path, were issues for the jury.
Hurdle and Cofield complain that, if Nuckles' negligence was a jury issue, the trial court erred when it struck the second sentence of Instruction 18A. As proposed, that instruction read in its entirety:
A pedestrian crossing a highway is required to exercise such care as an ordinarily prudent person would exercise under the existing circumstances. If under such circumstances he undertakes to cross without looking, or if looking, fails to see or heed traffic that is obvious and in dangerous proximity, and continues on in its path, then he is negligent.
This instruction is based on Hooker, supra, and is not inappropriate; however, a court is not required to give instructions that are repetitious. See Cook v. Basnight, 207 Va. 491, 497, 151 S.E.2d 408, 412 (1966); Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 814-15, 54 S.E. 879, 881 (1906). The instructions, taken as a whole, sufficiently instructed the jury on the duty to keep a proper lookout. See, e.g., Instruction 20. 5
Finally, Cofield contends that Nuckles "assumed the risk" by the manner in which he crossed Warwick Boulevard and that the trial court erred in refusing to submit this issue to the jury. The "essence" of assumption of risk is venturousness. Arrington, Adm'r v. Graham, Adm'r, 203 Va. 310, 314, 124 S.E.2d 199, 202 (1962). Here, the record is devoid of any indication that Nuckles was aware of the approach or danger of Cofield's van proceeding in the curb lane, yet proceeded to venture out in front of the van. Jury instructions must be supported by at least some evidence. Van Buren v. Simmons, 235 Va. 46, 51, 365 S.E.2d 746, 749 (1988). The trial court appropriately refused Instruction 17A, a jury instruction which was unsupported by the evidence.
Hurdle argues that the trial court should have granted his motion to strike Nuckles' evidence as to him and entered summary judgment in Hurdle's favor because the evidence did not establish any "act on the part of appellant, Hurdle, which would constitute negligence upon which recovery could be founded." We agree.
A driver's courteous, helpful gesture indicating that he will remain in place and allow another motorist or pedestrian to proceed may be limited to indicating safe passage solely with regard to the driver's vehicle. At other times, such a signal may indicate safe passage beyond the driver's vehicle. A driver is under no duty to do either. We considered this issue as a matter of first impression in Nolde Bros. v. Wray, 221 Va. 25, 266 S.E.2d 882 (1980). There we cited with approval Justice Cardozo's maxim that "one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Id. at 28, 266 S.E.2d at 884 (quoting Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922)). To determine whether Hurdle's signal constituted negligence here, we must look to the facts of this case.
The evidence, taken in the light most favorable to Nuckles, was that Hurdle stopped his van to let Nuckles and his companion cross in front of him. Hurdle's van was equipped with side mirrors. Nuckles and others testified that Hurdle appeared to look into the right side mirror, then looked back at Nuckles and waved him across. Neither Hurdle nor Nuckles expected a vehicle to be traveling in the curb lane. In the process of passing Hurdle's van, Nuckles turned his head to the right to check the curb lane. Cofield's van approached from the rear on the right in the curb lane, traveling 40 to 45 miles per hour and struck Nuckles.
On this record we cannot say, as we did in Nolde, that the driver was not in a position to ascertain the safety of proceeding. Here, however, the plaintiff has introduced no evidence supporting the proposition that Hurdle breached a duty of ordinary care.
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