Green v. Ruffin

• Decision Date: 18 December 1924
• Parties: GREEN. v. RUFFIN.
• Court: Virginia Supreme Court

125 S.E. 742

GREEN.

v.RUFFIN.

Special Court of Appeals of Virginia.

Dec. 18, 1924.

McLemore, J., dissenting.

Error to Corporation Court of Danville.

Action by Pearl Ruffin against Nellie R. Green. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Eugene Withers and Jno. W. Carter, Jr., both of Danville, and W. H. Venable and William Leigh Williams, both of Norfolk, for plaintiff in error.

Whitehead & Hurt, of Chatham, and Aiken & Benton, of Danville, for defendant in error.

CHRISTIAN, J. On the 11th day of November, 1921, Mrs. Pearl Ruffin and her sister, Mrs. Slade, who had been attending Armistice Day memorial services at the Methodist Church on Main street in Danville, were going home on the southern or left-hand side of Main street. At the point of the accident the street is 46 feet wide between curbs and has a double line of street car tracks in the middle of the street, and from the north rail to the north curb of the street is 15 feet 9 inches. Mrs. Ruffin lives on the north side of Main street, and when she arrived at a point on the south side of the street almost opposite her residence, she looked and saw no automobiles on the south side of Main street and started across the street to her residence walking rather briskly. When she reached the northern rail of the street car track, she checked her gait in order to let Mrs. Booth's car pass her, and after it passed she glanced down the street in the direction from which automobiles came on that side of the street, and saw a car about the alley between the Penn and Graveley residences, approximately 120 feet away, approaching. This car proved to be Mrs. Green's who was driving west to her home with Mrs. Beverly Ruffin. on the back seat. The occupants of the car had been to similar services at the Episcopal Church at the corner of Main and Jefferson streets. Mrs. Green's car was parked on Jefferson street. From thence she crossed Main street to the right-hand side and turned west. Mrs. Booth's car was behind Mrs. Green's but passed her, before Mrs. Pearl Ruffin said she saw the Green car about the alley between the Graveley and Penn residences.

The plaintiff did not look again in the direction from which the Green car was com-ing, and when she had practically reached the sidewalk, but before she had stepped upon it, she was struck by the car and knocked down and seriously injured. At the time of the collision, Mrs. Green remarked to her companion, "I fear I have hit some one, " and stopped her car. Both ladies went back and found the plaintiff on the sidewalk. Subsequently, at the hospital, Mrs. Green stated that she did not see the plaintiff.

Mrs. Green on the trial testified that the plaintiff stepped from behind the Booth car in front of her car, and she did not see her until too late to avoid the accident.

The court gave eleven instructions asked for by the plaintiff and nine instructions for the defendant, and the jury having heard the argument of counsel were sent out of court to consult of their verdict, and after some time returned, and upon their oath do say, "We, the jury, find for the plaintiff and assess her damages at ten thousand ($10,000.00) dollars."

"Whereupon the said defendant moved the court to set aside the verdict rendered in this cause against her and grant her a new trial on the grounds that the same is contrary to the law and the evidence and without evidence to support it, and further moved the court to enter up final judgment for the defendant herein, and the court takes time to consider thereof."

"And at another day, to wit, the 14th day of October, 1922, the defendant by her attorneys moved the court to set aside the verdict rendered against her and grant her a new trial, on the additional ground that the same is excessive, and the court takes time to consider thereof."

"And, now, at this day, to wit, on the 24th day of October, 1922, the court having maturely considered the defendant's motion to set aside the verdict, overruled the same, " and entered up judgment against the defendant in favor of the plaintiff for the full amount of the verdict; to which action of the court the defendant excepted, and brought the case before this court for review by writ of error:

Beside the exception to the action of the court overruling her motion to set aside the verdict of the jury and grant a new trial and enter up judgment for the defendant, exceptions were taken to each and all of the instructions given upon request of the plaintiff, as well as amendments made by the court to the instructions asked by the defendant, so that it is impracticable to consider them in detail. The parties will be denominated plaintiff and defendant in this opinion, as they were in the trial court.

The first error for consideration is the usual one in all negligence cases, whether the defendant was guilty of negligence which was the proximate cause of the plaintiff's injuries, and, if so, was the plaintiff guilty of contributory negligence which would bar her recovery? This goes to the very merits of the case, and will have to be considered from the standpoint of whether there was any evidence to sustain the verdict of the jury, or whether the facts found by the jury are supported by evidence.

The physical facts and circumstances attendant upon the injury and its cause are in the main uncontroverted, so that in the discussion of this branch of the case only the evidence to sustain the gravamen of the accident will be noticed, except where there is a sharp conflict between the plaintiff and defendant as to the surroundings.

When the plaintiff and her sister, Mrs. Slade, reached a point on the south side of Main street opposite the home of the plaintiff and between the intersections of cross-streets, she determined to cross directly to her home on the north side of Main street. While the evidence proves that the street is very much used at this point, the defendant's counsel strenuously urged upon the court the fact that the street was very much congested and crossing there was extremely dangerous. The evidence shows no street cars near the point where she crossed, and only three automobiles; Mrs. Prichett's car which crossed to the south side of the street, Mrs. Booth's car, and that of the defendant. It appears in the evidence that the plaintiff only saw two of the cars, to wit, Mrs. Booth's and Mrs. Green's.

The law which was the rule of the plaintiff's duty in crossing the street where she did is correctly laid down in instruction C, given for the plaintiff, as follows:

"The court instructs the jury that a pedestrian has a right to cross a street between crossings. If he elects to do so, rather than go to the regular crossings, he will be required to use greater care for his own safety than when he crosses at the place provided for pedestrians, as vehicles have the right of way, except at intersecting streets. But the court further instructs the jury that the rule by which to determine whether one crossing a street between crossings has exercised the greater care required in such case is the rule of ordinary care; that is to say, has he used the care which an ordinarily prudent person would use in the same place and under the same conditions." Core v. Wilhelm, 124 Va. 150, 98 S. E. 27; Washington & O. D. Ry. v. Zell's Adm'r, 118 Va. 759, 88 S. E. 309; Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457; Schneider v. Locomobile Co., 83 Misc. Rep. 3, 144 N. Y. S. 311.

An ordinance of the city of Danville provides that vehicles shall have the right of way over pedestrians between intersections of street with other streets. These right of way ordinances must be construed reasonably and according to their intent, which is to prevent the movement of traffic from being obstructed, so that when a pedestrian and vehicle approach, at the same time, the samepoint, the former crossing the street and the latter going forward, the ordinance requires the pedestrian to stop and give the right of way instead of stopping the vehicle. They have equal rights in the use of the street, and the pedestrian's right only yields to the vehicle when the necessity arises. Virginia Ry. & Power Co. v. Wellons, 133 Va. 350, 112 S. E. 845; Virginia Ry. & Power Co. v. Slack Grocery Co., 120 Va. 691, 101 S. E. 87S.

The plaintiff having the right to cross the street to her home where she did, the next subject of inquiry is as to her duty as to the care she should exercise. That is to say, has she used the care which an ordinarily prudent person would use in the same place and under the same circumstances? This is a question for the jury. Core v. Wilhelm, supra; Virginia Ry. & Power Co. v. Wellons, supra; Virginia Ry & Power Co. v. Oliver, 133 Va. 342, 112 S. E. 841.

The plaintiff testified that when she reached the north rail of the street car track, she stopped in order to let Mrs. Booth's car pass, and spoke to Mrs. Booth. When this car passed, she glanced in the direction from which cars traveled on that side of the street, and saw no other car except that of the defendant, about 120 feet away at the alleyway between the Graveley and Penn residences, and thinking she could cross to safety before the car reached her, she resumed her journey without looking again, and when she was practically about to step upon the sidewalk, she was struck by the car, knocked unconscious, and injured as detailed by her and the physicians who attended her. Mrs. Slade corroborated her as far as she could. It was clearly the duty of the plaintiff to look in the direction from which cars were coming before leaving her place of safety. The rule to look and listen which applies to pedestrians and street cars and railroads from the character of their occupancy of the street or crossings, their speed, and facility to avoid collisions, does not apply with the same strictness in law to pedestrians and automobiles. Whether the plaintiff, after glancing up the street and seeing the defendant's...