Frazier v. Stout

• Decision Date: 19 September 1935
• Citation: 181 S.E. 377
• Parties: FRAZIER. v. STOUT.
• Court: Virginia Supreme Court

181 S.E. 377

FRAZIER.

v.STOUT.

Supreme Court of Appeals of Virginia.

Sept. 19, 1935.

Error to Circuit Court, Washington County.

Action by Pearl Stout against C. C. Frazier. Judgment for the plaintiff, and the defendant brings error.

Reversed.

Argued before HOLT, HUDGINS, BROWNING, CHINN, and EGGLESTON, JJ.

Wm. A. Stuart, of Abingdon, and S. B. Campbell, of Wytheville, for plaintiff in error.

T. L. Hutton, of Abingdon, and Warren & Cantwell, of Bristol, for defendant in error.

EGGLESTON, Justice.

Pearl Stout, while walking or running across the highway, was struck by an automobile operated by C. C. Frazier. For the injuries received she has recovered a verdict and judgment, which are under review here on a writ of error granted Frazier. The parties will be referred to as they appeared in the court below.

The accident happened between 8 and 9 o'clock on the morning of October 10, 1933, in front of Mrs. Stout's residence, which is close to the eastern side of the state highway between Abingdon and Greendale, in Washington county, Va. The road, which runs approximately north and south, is hard surfaced for a width of 19¹/₂ feet, with a smooth 8-foot shoulder on each side. From a point about 600 feet south, to the Stout home, the road is straight and slightly down grade.

On the morning of the accident Mrs. Stout had driven her car to a store on the highway, north of her residence, for the purpose of making some purchases. On her return she parked the car on the western side of the road, and was in the act of crossing to her residence on the opposite side when she was struck.

The defendant, Frazier, accompanied by his niece, Mrs. Cole, was driving a Pontiac coupe northwardly at the time of the accident. There was no other traffic on the road at this point; the day was bright and the pavement dry.

According to the plaintiff's witnesses, as the car approached, it was making approximately SO miles per hour, and Mr. Frazier was looking not ahead, but off to his right. When Frazier realized that Mrs. Stout was in danger, he cut his car to the right and ran off the hard surface of the road to the shoulder. Mrs. Stout continued on her course and was sideswiped by the left front fender of the car, just as she stepped from the hard-surfaced portion of the road to the eastern shoulder. After the impact the Frazier car turned to the left and came to a stop on the hard surface about 75 feet from the point of the collision.

In view of the verdict of the jury, it will not be necessary for us to review the testimony of Mr. Frazier and Mrs. Cole, which conflicts with that of the plaintiff's witnesses in several important respects.

According to Frazier's testimony, he first saw Mrs. Stout when he was about 75 yards from her parked car. She was then approaching a small boy who was standing on the western edge of the road near her car. Thinking that her purpose was to prevent the child from crossing the road, and having no intimation that she herself would cross in front of him, Frazier continued on his way. When his car was about 50 feet from her he realized that she was going to attempt to cross in front of him. In the emergency he put on his brakes, cut his car to the right, and thought that he had cleared her until he heard the noise of the impact against the left side of his car.

While there are several assignments of error, the view which we take of the matter makes it necessary for us to discuss only one. Frazier's counsel do not contend that the evidence was insufficient to convict him of primary negligence. But they earnestly contend that according to the testimony of the plaintiff herself, she was guilty of contributory negligence which concurred with that of the defendant, continued up to themoment of the collision, and which bars her recovery.

The written opinion filed by the trial judge states: "In the court's mind there was little doubt that the plaintiff's own statement convicted her of negligence, " but that whether the defendant had the last clear chance to avoid the accident was a question for the jury. In this connection the opinion further says: "My own impression from the evidence was that the plaintiff had the first, last, and every intermediate chance to avoid the accident."

Since Mrs. Stout testified to practically every detail of the accident, under the well-settled doctrine laid down by this court she cannot make out a more favorable case than her own evidence justifies. Mas-sie v. Firmstone, 134 Va. 450, 462, 114 S. E. 652; Maryland Casualty Co. v. Cole, 156 Va. 707, 717, 158 S. E. 873; Virginia Electric & Power Co. v. Vellines, 162 Va. 671, 679, 175 S. E. 35.

Her general description of the accident is this: "I got out of the car and talked to Uncle Henry White five or ten minutes, and went down the road a step or two below the car and looked up and saw the car, the automobile, about 200 yards coming down the road, but I knowed I could make it, and it looked like he was flying, and didn't look like he was looking where he was going, looking the other way, and after I seen he was going to catch me, and the boy hollered, I run, and the car caught me on this leg (indicating), and I fell. I just remember the car hitting this leg and falling."

Pressed for details, she testified that when she first saw the car she was at the western edge of the hard-surfaced portion of the road. While she claimed that the car was then 600 feet away, she further said that it was close enough for her to see that it was coming at a rapid rate of speed, and that the driver was looking, not where he was going, but off to the right. Despite this situation, she started to walk straight across the road in front of the car. When she had gotten partly across, she heard the warning cry of her son, and began running until she had cleared the eastern edge of the hard surface of the road. During all the while she was crossing the road she kept her eyes on the rapidly approaching automobile. When she had cleared the hard surface she stopped looking, and saw the car no more until it shot in front of and sideswiped her. When she was struck she was only 2*4 feet, just one step, off of the hard-surfaced portion of the road.

From this testimony of the plaintiff it is obvious that she stopped looking at the car at the very instant when it was most important for her to look. By her own admission, when she stepped off of the concrete the car was then "pretty close" on her. According to the testimony of her son, it was approaching at an approximate speed of 50 miles per hour. It is evident that she did not see the car just before it struck her, because she said she did not know that the driver had turned his course sharply to the right and had run entirely off of the concrete on the shoulder in the effort to avoid her.

We have this situation, then, where a pedestrian is in a place of safety, sees an automobile rapidly approaching, sees that the driver is not keeping a proper lookout, yet leaves this place of safety, and starts across the road. As she crosses she watches the rapidly approaching car all the time until she is only one step from its path, then she assumes that she is safe, although she knows that the car is almost upon her, stops looking, and steps right in its way.

Assuming that the driver was guilty of primary negligence, it is too clear for argument that the plaintiff, under these circumstances, was guilty of contributory negligence. See Stephen Putney Shoe Co. v. Ormsby's Adm'r, 129 Va. 297, 105 S. E. 563; Meade v. Saunders, 151 Va. 636, 144 S. E. 711; Bailey v. Fore, 163 Va. 611, 177 S. E....