Jenkins v. Johnson

Decision Date21 April 1947
Citation186 Va. 191,42 S.E.2d 319
PartiesJENKINS. v. JOHNSON.
CourtVirginia Supreme Court

Rehearing Denied June 12, 1947.

Error to Circuit Court, Nansemond County; John K. Hutton, Judge.

Death action by Mary M. Johnson, as administratrix of William Dempsey Johnson, deceased, against Paul H. Jenkins. Judgment for plaintiff and defendant brings error.

Judgment reversed and final judgment entered for defendant.

Before HOLT, C. J., and HUDGINS, GREGORY, EGGLESTON, SPRATLEY and BUCHANAN, JJ.

Chas. B. Godwin, Jr. and Mills E. Godwin, Jr., both of Suffolk, and I. W. Jacobs, of Norfolk, for plaintiff in error.

Thomas L. Woodward, of Suffolk, for defendant in error.

HUDGINS, Justice.

Mary M. Johnson, as administratrix of William Dempsey Johnson, instituted this action against Paul H. Jenkins for the wrongful death of decedent. From an adverse judgment of $3,000 entered on the. verdict, Paul H. Jenkins obtained this writ of error.

The decisive question is whether the evidence is sufficient to sustain the verdict.

The facts are undisputed. William Dempsey Johnson and his wife operated a filling station about five miles west of Suffolk on Route 58, which is an east and west route. The filling station is on the south side of the highway and their residence is opposite it on the other side. The hard surface of the highway is 33 feet wide and divided by white lines into three traffic lanes each 11 feet wide. There are wide dirt shoulders on each side. Shortly after 6 p.m. on January 4, 1945, defendant was proceeding west on this route. Decedent was observed standing on the south side of the highway in front of the filling station. As soon as two motor vehicles traveling east passed him, he started across the highway. Defendant, traveling west at between 25 and 30 miles an hour, first saw decedent when he (decedent) was about the center of the middle lane and when defendant was 25 or 30 steps to the east. Defendant immediately blew his horn. When he saw that decedent did not intend to stop and permit him to pass, he swerved his car to the right. At about the same time decedent increased his speed and walked or half-ran into the side of defendant's car when the right wheels were at least three feet off the hard surface on the right shoulder. Decedent's body hit the center of the left front fender of defendant's large Buickcar and his head struck the windshield post. His body fell back on the highway diagonally across the white line which divides the westbound and center traffic lanes. Defendant skidded 54 feet in the ditch and pulled out of the ditch on the shoulder 87 feet from the body.

The highway was level and straight for approximately one-quarter of a mile east and west of the point of impact. After the motor vehicles traveling east had passed, there was nothing to prevent either defendant or decedent from seeing the other. If defendant was negligent in failing to see decedent, decedent was equally negligent in failing to see defendant's car. If it be conceded that the defendant was negligent in failing to see decedent in time to have avoided the accident, then it must be conceded that if decedent had stopped walking at any point within four feet of the northern edge of the hard surface, he would have saved himself from the collision. No question of who had. the right of way is involved.

When an automobile driver, who is otherwise free from negligence, sees an adult...

To continue reading

Request your trial
16 cases
  • Anderson v. Payne
    • United States
    • Supreme Court of Virginia
    • 20 Junio 1949
    ......v. Henderson, 178 Va. 207, 16 S.E.2d 389; Harris Motor Lines v. Green, 184 Va. 984, 37 S.E. 2d 4; 171 A.L.R. 359; Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319.         "In short, " said the late Chief Justice Holt in State of Maryland, for Use of Joynes v. ......
  • Garmon v. Thomas
    • United States
    • United States State Supreme Court of North Carolina
    • 4 Febrero 1955
    ...... Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319. The facts compel the view that the defendant's truck was near the plaintiff and plainly visible to him if he ......
  • Anderson v. Payne
    • United States
    • Supreme Court of Virginia
    • 20 Junio 1949
    ....... Henderson, 178 Va. 207, 16 S.E.(2d) . Page 718 . 389; Harris Motor Lines Green, 184 Va. 984, 37 S.E.(2d) 4, 171 A.L.R. 359; Jenkins Johnson, 186 Va. 191, 42 S.E.(2d) 319. .         "In short," said the late Chief Justice Holt in Maryland Coard, supra, "he is charged with ......
  • Lanier v. Johnson
    • United States
    • Supreme Court of Virginia
    • 10 Octubre 1949
    ......It does not save a plaintiff from the bar of his own negligence unless he has shown that after the situation of peril created by his previous negligence was discovered, or ought to have been discovered, the defendant had a last clear chance to prevent the accident by using ordinary care. Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319; Saunders v. Temple, 154 Va. 714, 153 S.E. 691.        If opportunity to avoid the accident was as available to the decedent as to the defendant, then decedent's negligence was not a remote cause of the collision but continued as a proximate cause ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT