Core v. Wilhelm

• Decision Date: 16 January 1919
• Parties: CORE . v. WILHELM.
• Court: Virginia Supreme Court

98 S.E. 27

CORE .

v.WILHELM.

Supreme Court of Appeals of Virginia.

Jan. 16, 1919.

Error to Circuit Court of City of Norfolk.

Action by N. J. Wilhelm against Mrs. W. A. Core and another. Judgment against defendant named, and she brings error. Affirmed.

Baird & Swink, of Norfolk, for plaintiff in error.

Levy & Mitchell, of Norfolk, for defendant in error.

BURKS, J. This is an action to recover damages for a personal injury inflicted on the plaintiff by the defendant by striking him with an automobile at a street crossing in the city of Norfolk. The collision and the consequent injury to the plaintiff is not denied, but the defense is that the defendant was not negligent, or, if she was, that the plaintiff was also guilty of negligence proximately contributing to his injury. The defendant offered no evidence, but demurred to the evidence offered by the plaintiff. The jury assessed the plaintiff's damage at $2,-000, and the court overruled the defendant's demurrer and entered up judgment on the verdict for the plaintiff. To that judgment this writ of error was awarded.

The collision occurred at a regular crossing of Granby street in the city of Norfolk, but the details of it are very meager. Only two witnesses testify as to what occurred at the time—the plaintiff and a policeman. The plaintiff was a Russian, who could neither understand nor speak the English language, and gave his testimony through the medium of an interpreter. He arrived in the city by boat from Newport News only a few hours before the accident, and, after walking up Granby street for some distance, was attempting to cross in quest of Church street, to which he had been directed. His account of what occurred is that he went to the corner and attempted to cross Granby street, and proceeded as far as the first track of the street car line, when he was struck by the automobile which ran over his ankle and also badly injured one of his wrists. He says he looked just when he left the sidewalk, and that there was no automobile in that block, but that "there was an automobile in the other block"; that the latter was a long distance from him, and was far enough away for him to cross the track; that no gong was sounded or bell rung; and that he did not hear the machine approaching. On cross-examination, he states that he came from a city in Russia-Poland, where they have automobiles and street cars, that the whole street was empty, and that the automobile which struck him was the only one in the block at the time. When asked whatpart of the machine struck him, he replied, "If he could see it, he would run away from it." This is practically all of his testimony relating to the accident. His wounds were of quite a serious nature. The policeman's statement is that he could not tell how many machines were in the block at the time, but that he saw the defendant coming down Granby street at 5 minutes to 7 on November 2d; that she ran into the plaintiff and knocked him out into the street; that he "saw the man fall from the automobile"; that she never made any attempt to stop alter striking him until he stopped her; that she did not go back with the machine to pick him up; and that he did not hear her blow a horn, or ring a gong. He estimated the distance of the scene of the accident from him at 150 feet. He also stated that the street lights were burning at the time. The defendant, who was called as witness for the plaintiff, admitted that she was operating an electric automobile which came in contact with the plaintiff on Granby street, Norfolk, Va., on November 2, 1916. The foregoing is the substance of the evidence demurred to, and is given largely in the language of the witnesses themselves.

Admitting the truth of this evidence and all just inferences which a jury might have drawn from it, as must be done on a demurrer to the evidence, the question is: Would a jury have been warranted in finding a verdict for the plaintiff? The rights of the parties at the crossing were equal and reciprocal, and it was the duty of each to look out for the other. The defendant saw, or ought to have seen, the plaintiff attempting to make the crossing, and it was her duty to have had her car under such control that she could have stopped it if necessary in order to have avoided the accident. The injury occurred at a corner where the defendant might reasonably have expected to encounter foot passengers crossing the street, and it was her duty to keep a lookout for them. Her view was unobstructed—"there was no other automobile on the block"—and she had no right to endanger the lives or limbs of other people on the street whose rights in the street were equal to her own. She was operating an electric automobile, approaching a crossing which the plaintiff was upon and attempting to cross, and she saw or ought to have seen him, and yet gave no signal of her approach. There is no evidence of the speed at which she was driving, or that the speed was lessened. The jury would have been warranted, under these circumstances, in inferring that she did not have her car under such control as would have enabled her to have avoided the injury, and that she was negligent in its operation.

The rights of the plaintiff and of the defendant at the crossing were equal and reciprocal. Neither had the right of way over the other, and each had the right to assume that the other would discharge the duty imposed upon him. The rule of "look and listen" applicable to grade crossings of steam railroads is not applicable to cases of this kind. The measure of duty imposed upon a pedestrian about to cross a city street, where motor vehicles of all kinds are frequently passing, is that he shall use such care as a person of ordinary prudence would use under like circumstances, and whether or not he did use such care is ordinarily a question for the jury. Va. Ry. & Power Co. v. Boltz, 122 Va 619, 95 S. E. 467. Of course, he cannot blindly or negligently expose himself to danger; but he Is not required to be continuously looking and listening to ascertain if automobiles are approaching, under penalty that upon failure to do so, if he is injured, his negligence must be conclusively presumed. Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396; Shea v. Reems, 36 La. Ann. 966.

In Baker v. Close, 204 N. T. 92, 97 N. E. 501, 38 L R. A. (N. S.) 487, the negligence of the defendant was admitted, but there was conflict in the testimony as to the plaintiff's contributory negligence. In that case it was said:

"The footman is not required, as a matter of law, to look both ways and listen, but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control. Buhrens v. Dry Dock, E....