Eisenhower v. Jeter
| Decision Date | 27 April 1964 |
| Docket Number | No. 5721,5721 |
| Citation | 205 Va. 159,135 S.E.2d 786 |
| Parties | ELMER E. EISENHOWER, ET AL. v. VERGIE JETER, ADMINISTRATRIX ETC. Record |
| Court | Virginia Supreme Court |
Wayne Lustig (Gordon E. Campbell, on brief), for the plaintiffs in error.
Sterling W. Walker (Victor J. Ashe, on brief), for the defendant in error.
This action was instituted by Vergie Jeter, administratrix of the estate of Herbert Jeter, deceased, to recover damages for the death of her husband, Herbert Jeter, which resulted from injuries sustained when he, a pedestrian, was struck while crossing a street by an automobile operated by Elmer E. Eisenhower and owned by D. Levitin & Sons, Incorporated.
A jury trial resulted in a verdict of $6,500.00 for the plaintiff, on which the trial court entered judgment.
The facts are fairly simple though not without conflict.
The accident occurred in Norfolk, Virginia, at approximately 12:40 p.m., on July 24, 1962, on Chesapeake Boulevard, at its junction with Auburn avenue. Chesapeake Boulevard, at that point, runs north and south, and is a two-lane highway, with a broken white line in the center separating northbound and southbound traffic. It is hard surfaced with dirt shoulders. Auburn avenue runs generally east and west, and enters Chesapeake Boulevard on the latter's eastern side; but does not continue beyond the western side thereof. Where the streets join there is a clearly marked crosswalk for pedestrians over Chesapeake Boulevard from its western to its eastern side. Code of Virginia, 1950, § 46.1-231.
The plaintiff testified that as she and her husband started to cross Chesapeake Boulevard from its western side to its eastern side, each looked north and south; and, seeing that the way was clear, her husband proceeded ahead, walking between the white lines of the crosswalk. She followed two or three feet behind him. Each was carrying a bag of groceries on their way home. She said that as her husband 'got nearly cross,' an automobile driven by the defendant, Eisenhower, struck him with great force and knocked him into the ditch.
John J. Lloyd, who was waiting nearby, on the east side of Chesapeake Boulevard, to take a passenger bus for downtown Norfolk, said that he saw Jeter and his wife on the other side of the street as they walked to the intersection; that as they reached the intersection both stopped; that Jeter, prior to entering the crosswalk, 'looked each way' up and down Chesapeake Boulevard; that at that time, he, the witness, saw the car driven by Eisenhower two blocks northerly from the crosswalk; that Jeter took two or three steps into the street between the white lines of the crosswalk, and apparently seeing the oncoming car near him, 'tried to step back;' and that as he did so the car struck him. He estimated the speed of the approaching car at about 45 miles per hour. No other cars were observed as approaching.
A. T. Smith, who was driving an automobile westerly on Auburn avenue, approaching Chesapeake Boulevard, said that as he looked forward, he saw Jeter and his wife approach the crosswalk; that Jeter was ahead of Mrs. Jeter; that both stopped; that Jeter 'looked for traffic' and then started across on the crosswalk; and that as he proceeded, the car driven by Eisenhower struck him. The witness did not hear any squeal of the car's brakes; but he said the tires left 70 to 80 feet of skidmarks on the pavement.
The day was clear and the roadways were dry. There was no regulation by traffic officers, nor traffic direction devices at the intersection. Both highways involved were within a residential district and the speed limit was 30 miles an hour. At the point of the accident, Chesapeake Boulevard is straight three miles to the north and one mile to the south.
Jeter received multiple injuries and bruises, from which he died later the same day. The doctor who attended him said he was an 'elderly Negro,' and there was filed a certificate of death showing that he was 70 years of age. Another exhibit showed that he was a retired railroad employee and received a monthly pension of $106.80.
Elmer E. Eisenhower testified that as he was driving at 15 to 18 miles an hour, and 'just after' he 'passed over the walkway,' he saw Jeter and his wife walking arm in arm 'down Chesapeake south;' that as he 'passed over that walkway just about 8 or 10 feet from that they glanced to their left and noticed me coming there, and without any indication they were going to cross over there, they made a sudden -- he did, a sudden cross right in front of me;' that it was his 'guess' that Jeter was then about 3 feet from him; and he was unable to avoid striking him.
It was admitted that Eisenhower was, at the time, employed by D. Levitin & Sons, Incorporated, and was operating the vehicle involved in the course of his employment.
Eisenhower and D. Levitin & Sons, Incorporated, defendants, assigned several grounds of error to the rulings of the trial court; but in their brief, and argument at the bar of this Court, they say there are but two questions presented on appeal. Those questions are whether two instructions given for the plaintiff, P-5 dealing with the last clear chance doctrine and P-8 dealing with the measure of damages are supported by the evidence.
Instruction P-5 reads as follows:
'The Court instructs the jury that although the jury may believe from the evidence that the deceased was negligent on the occasion in question, nevertheless, if you believe from a preponderance of the evidence that at the time of the accident the deceased was in a situation of peril from which he was not physically able to remove himself, and that the defendant saw or in the exercise of reasonable care should have seen, the deceased in his situation of peril in time to avoid the accident by using reasonable care, but that thereafter the defendant failed to exercise such care and that such failure was the sole proximate cause of the accident, then under these circumstances the defendant is liable and the jury shall return their verdict for the plaintiff.'
In order to remove uncertainty regarding the application of the doctrine of last clear chance, we undertook in Greear v. Noland Company, 197 Va. 233, 237, 238, 89 S.E.2d 49, to adopt a rule clearly setting out the governing principles. There we said that the doctrine of last clear chance applies to two types of plaintiffs:
...
To continue reading
Request your trial
-
Vandergrift v. United States, Civ. A. No. 77-197-N.
..."just" are to be given broad and liberal construction. Pugh v. Yearout, 212 Va. 591, 186 S.E.2d 58, 61 (1972); Eisenhower v. Jeter, 205 Va. 159, 164, 135 S.E.2d 786, 789 (1964). There is no evidence James contributed to the financial support of his family. However, the Court said that under......
-
Sawyer v. United States, Civ. A. No. 77-718-N.
..."just" are to be given broad and liberal construction. Pugh v. Yearout, 212 Va. 591, 186 S.E.2d 58, 61 (1972); Eisenhower v. Jeter, 205 Va. 159, 164, 135 S.E.2d 786, 789 (1964). The monetary damages incurred in the hospitalization of Sawyer between the period of the accident and the time of......
-
Hewitt v. Firestone Tire & Rubber Co.
...and just," a phrase entitled to "a broad and liberal construction," suggests the boundaries of a damage award. Eisenhower v. Jeter, 205 Va. 159, 164, 135 S.E.2d 786, 789 (1967). The Virginia courts repeatedly have emphasized the discretion enjoyed by a court or a jury in ascertaining the am......
-
Coutlakis v. CSX Transp., Inc., Record No. 160277
...the fact that the other litigant had previously, by his negligence, placed himself in a situation of peril." Eisenhower v. Jeter, 205 Va. 159, 163, 135 S.E.2d 786, 788-89 (1964). In Greear, the Court acknowledged that there were two existing approaches to the application of the last clear c......