Dobson-Peacock v. Curtis

Citation166 Va. 550
PartiesEDITH DOBSON-PEACOCK AND SWIFT NELMS, JR. v. LEILIA M. CURTIS.
Decision Date11 June 1936
CourtSupreme Court of Virginia

Present, Holt, Hudgins, Gregory, Chinn and Eggleston, JJ.

1. NEGLIGENCE — Last Clear Chance — Actual Knowledge of Plaintiff's Peril — Where Defendant Should Have Seen Plaintiff's Peril. A defendant is liable under the last clear chance doctrine both where he actually sees the peril of the plaintiff and fails to exercise ordinary care to avert the injury, and also where the defendant, being under a duty to keep a proper lookout for the plaintiff, by the exercise of ordinary care should have seen the plaintiff's peril in time to have avoided the injury by the use of ordinary care.

2. AUTOMOBILES — Collision with Pedestrian — Duty of Driver to Keep Reasonable Lookout — Case at Bar. — In the instant case, an action by a pedestrian to recover for injuries sustained when struck by an automobile while crossing the street between intersections, the driver testified that he saw plaintiff for the first time when she was in the middle of the street and about fifty feet from him. The day was clear and the road dry and there was evidence that the driver had an unobstructed view of plaintiff.

Held: That the driver was under a duty to keep a reasonable lookout for pedestrians crossing the street.

3. AUTOMOBILES — Collision with Pedestrian — Last Clear Chance — Recovery Warranted by Evidence that Driver Should Have Seen Plaintiff's Peril by Exercise of Ordinary Care — Case at Bar. — In the instant case, an action by a pedestrian to recover for injuries sustained when struck by an automobile while crossing the street, plaintiff did not see the car until she had reached the center line and thinking she could safely cross, she hastened her steps and had reached the curb when struck, the automobile having swerved and run up on the sidewalk. The driver testified that he saw plaintiff for the first time when she was in the middle of the street and about fifty feet from him, although the day was clear and there was evidence that the driver had an unobstructed view of plaintiff. There was a verdict and judgment in plaintiff's favor.

Held: That if there was sufficient evidence on which the jury could base a finding that by exercising ordinary care the driver should have seen the plaintiff's peril in time to have avoided the accident by the use of ordinary care and failed to do so, the judgment should be affirmed.

4. AUTOMOBILES — Collision with Pedestrian — Last Clear Chance — Evidence Warranting Inference that Driver Might Have Stopped in Time to Avoid Accident — Case at Bar. — In the instant case, an action by a pedestrian to recover for injuries sustained when struck by an automobile while crossing the street, the driver testified that he could have stopped within thirty-eight feet under the conditions then existing, and that when he first saw plaintiff she was fifty feet from the front of his car. While these distances were estimates, the jury might have inferred from this testimony that the driver could have stopped within this distance and avoided the collision.

5. AUTOMOBILES — Collision with Pedestrian — Questions of Law and Fact — Proximate Cause — Failure of Driver to See Pedestrian — Case at Bar. — In the instant case, an action by a pedestrian who was struck by an automobile while crossing the street, plaintiff testified that she did not see the car until she reached the center of the street and then thought she had time to cross. The driver testified that he saw plaintiff for the first time when she was in the center of the street and about fifty feet from his car, although there was evidence that there were no cars parked on the street and that plaintiff was in plain view of the driver from the time she left the curb. The jury returned a verdict for plaintiff.

Held: That under the evidence the jury might have believed that the driver's failure to see plaintiff walking towards the center of the street, unmindful of the approaching car, was the proximate cause of the accident.

6. AUTOMOBILES — Collision with Pedestrian — Questions of Law and Fact — Last Clear Chance — Whether Driver Could Have Avoided Accident by Exercise of Ordinary Care after Seeing PlaintiffCase at Bar. — In the instant case, an action by a pedestrian who was struck by an automobile while crossing the street, plaintiff testified that she did not see the car until she reached the center of the street and then thought she had time to cross. The driver testified that he saw plaintiff for the first time when she was in the center of the street and about fifty feet from his car, although there was evidence that there were no cars parked on the street and that plaintiff was in plain view of the driver from the time she left the curb. The jury returned a verdict for plaintiff.

Held: That under the evidence the jury might have believed that after the driver saw plaintiff in the center of the street, by the exercise of ordinary care he could have so guided the car as to have avoided her.

7. AUTOMOBILES — Collision with Pedestrian — Right of Pedestrian to Assume that Driver Was Keeping Proper Lookout — Case at Bar. — In the instant case, an action by a pedestrian who was struck by an automobile while crossing the street between intersections, plaintiff testified that she did not see the car until she had reached the center of the street and thinking that the driver saw her and that she could safely cross, continued toward the other side. The driver testified that he saw plaintiff for the first time when she was in the center of the street and about fifty feet from his car, although there was evidence that there were no cars parked on the street and that the driver had an unobstructed view of plaintiff from the time she left the curb.

Held: That while plaintiff was charged with knowledge of the approaching car which she should have seen, she was not charged with knowledge that the driver was not keeping a proper lookout, and had the right to assume that any driver proceeding along the street would be keeping a reasonable lookout.

8. AUTOMOBILES — Collision with Pedestrian — Questions of Law and Fact — Last Clear Chance — Case at Bar. — In the instant case, an action by a pedestrian who was struck by an automobile while crossing the street between intersections, plaintiff did not see the car until she reached the center of the street, at which time she thought she had time to cross, and the driver of the car saw plaintiff for the first time when she was in the center of the street and about fifty feet from his car. There was evidence that there were no cars parked on the street, that the driver had an unobstructed view of plaintiff from the time she left the curb and that the car was traveling at a high rate of speed.

Held: That it was a question for the jury whether the driver, under all of the facts and circumstances, had the last clear chance to avoid the accident.

9. AUTOMOBILES — Collision with Pedestrian — Liability of Owner for Negligence of Operator Who Was Gratuitous Agent — Case at Bar. — In the instant case, an action by a pedestrian against the owner and the operator of an automobile, it was contended that there was no evidence to support a verdict against the owner of the car. The latter purchased and maintained the car for the use of herself and her family, but as they could not drive she engaged the young man who was operating the car at the time of the accident for that purpose. While he received no pay, he drove regularly and on such occasions was under the direction and control of the owner. On the occasion of the accident he had taken a member of the owner's family to the railroad station.

Held: That the driver's status was that of a gratuitous agent of the owner of the car and that she was liable for his negligence.

10. AUTOMOBILES — Collision with Pedestrian — Verdict — Verdict Not Excessive — Case at Bar. — In the instant case, an action by a pedestrian to recover for injuries suffered when struck by an automobile, the jury returned a verdict for $10,000. Plaintiff sustained a broken pelvis, a broken hand, injuries to her head, and serious internal injuries, which, at the time of the trial, had confined her to the hospital for three months, and even at that time she had not been discharged or cured.

Held: That the verdict was not excessive.

Error to a judgment of the Circuit Court of the city of Norfolk. Judgment for plaintiff. Defendants assign error.

The opinion states the case.

Donald W. Shriver and Hughes, Little & Seawell, for the plaintiffs in error.

Venable, Miller, Pilcher & Parsons, for the defendant in error.

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

Lelia M. Curtis, while walking across Olney road in the city of Norfolk, was struck and severely injured by an automobile owned by Edith Dobson-Peacock and driven by Swift Nelms, Jr. The verdict and judgment of $10,000 which she has recovered against both the owner and operator of the car are here for review. The parties will sometimes be referred to as they appeared before the trial court.

Olney road runs approximately east and west, is thirty-two feet wide from curb to curb and paved with asphalt. On the early afternoon of November 8, 1934, the plaintiff left her residence on the south side of Olney road for the purpose of going to a store located across the street and a short distance west of her home. The weather was fair, the visibility was good and the pavement was dry. She walked west along the south side of the street until she reached a point nearly opposite the store and about 100 feet from the nearest street intersection. She says that before leaving the curb she looked both ways and seeing no traffic approaching from either direction started straight across the street towards the store. When she had about reached the center line of the street she saw for the first time the westbound Peacock...

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