Jenkins v. Johnson, Record No. 3171.

Decision Date21 April 1947
Docket NumberRecord No. 3171.
CourtVirginia Supreme Court

Present, Holt, C.J., and Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ.

1. AUTOMOBILES — Presumption — That Pedestrian Will Exercise Ordinary Care. — When an automobile driver, who is otherwise free from negligence, sees an adult pedestrian in a place of safety on or near the highway, he has a right to presume that such pedestrian will exercise ordinary care to protect himself from injury.

2. NEGLIGENCE — Last Clear Chance — Time and Opportunity to Avoid Injury. — In order for plaintiff to invoke the doctrine of the last clear chance, he must introduce evidence which shows that defendant had sufficient time and opportunity, after he discovered, or should have discovered, plaintiff's danger from his own negligence, to avoid the injury.

3. NEGLIGENCE — Last Clear Chance — Necessity for Time for Effective Action. — The doctrine of last clear chance presupposes time for effective action and is not applicable where the emergency is so sudden that there is no time in which to avoid the accident. Unless there is an appreciable difference in time between the earlier negligence of the plaintiff and the later negligence of the defendant and a last clear chance to avoid the accident afforded the defendant of which he fails to avail himself, the doctrine does not apply.

4. NEGLIGENCE — Last Clear Chance — Burden of Proof. The plaintiff is not entitled to recover under the doctrine of last clear chance upon mere peradventure. The burden is upon him to show affirmatively by a preponderance of the evidence that by the use of ordinary care after the peril was discovered the defendant in fact had a last clear chance to avoid the injury. A mere possibility is not sufficient.

5. AUTOMOBILES — Contributory Negligence — Pedestrian Who Walked into Car — Case at Bar. — In the instant case, an action for wrongful death, decedent, after the passage of two east-bound automobiles, started to cross the highway from the south and, when first seen by defendant, who was traveling west, he was about in the center of the highway. Defendant blew his horn and swerved to the right but decedent increased his speed and walked or half-ran into the side of defendant's car. The highway was level and straight and there was nothing to prevent either defendant or decedent from seeing the other.

Held: That both defendant and decedent had equal opportunity to see each other and to avoid the collision, that neither exercised proper care and that decedent's negligence was a contributing cause of his injuries.

Error to a judgment of the Circuit Court of Nansemond county. Hon. John K. Hutton, judge presiding.

The opinion states the case.

Chas. B. Godwin, Jr., Mills E. Godwin, Jr., and I. W. Jacobs, for the plaintiff in error.

Thomas L. Woodward, for the defendant in error.

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

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 6:00 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...

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