Lanier v. Johnson

Decision Date10 October 1949
Citation55 S.E.2d 442,190 Va. 1
CourtVirginia Supreme Court

Martha Johnson, executrix, etc., sued John C. Lanier for death of J. T. Johnson, deceased, arising out of an automobile collision.

The Circuit Court of Elizabeth City County, Frank A. Kearney, J., rendered judgment for plaintiff and defendant brought error.

The Supreme Court of Appeals, Buchanan, J., reversed judgment holding that last clear chance doctrine was not applicable to enable plaintiff to recover despite decedent's negligence.


James & Richardson, Hampton, I. W. Jacobs, Norfolk, for plaintiff in error.

Ross A. Kearney, Phoebus, A. W. E. Bassette, Jr., Hampton, Savory E. Amato, Norfolk, for defendant in error.

BUCHANAN, Justice.

This action grows out of a collision at a street intersection between a car driven by the defendant below, John C. Lanier, and one driven by J. T. Johnson. Johnson subsequently died and his executrix, plaintiff below, alleging that his death was due to Lanier's negligence, recovered a verdict and judgment for $5,000 against Lanier, to whom this writ of error was granted. The controlling issue is whether the judgment can be sustained under the last clear chance doctrine, which was submitted to the jury over defendant's objection.

The collision occurred about 7:45 a.m., May 1, 1948, at the intersection of Mallory avenue and North King street, in the city of Hampton. Mallory avenue runs east and west; North King street runs north and south. On the west of the intersection Mallory avenue is a four-lane highway, 48 feet wide; on the east side it is 69 feet wide but is there divided by a curbed grass plot which begins 51 feet from the east edge of the intersection and extends east. This grass plot is 19 feet wide, dividing the avenue into two driveways, each 25 feet wide. North King street is approximately 33 feet wide on both sides of the intersection. The streets, both of which are hard-surfaced and level, cross each other at right angles and there is nothing to obstruct vision.

There was an overhead traffic light at the intersection, which was located, however, not at the center of the intersection but six feet from its northern edge, or approximately in front of the northern driveway of Mallory avenue. This light was green for east-west traffic on Mallory avenue at the time of the accident.

Lanier was driving east on Mallory avenue and approached the intersection at 30 miles an hour, according to one witness for the plaintiff, or at 25 miles an hour, according to another of her witnesses, and according to defendant's evidence. The speed limit there was 25 miles an hour.

Johnson, who was nearly 75 years old, a minister and also a juvenile officer of the city, approached the intersection from the east, driving west on Mallory avenue, meeting the defendant, and intending to turn south, or to his left, into King street to go to the police station on that street, which would take him across defendant's lane of travel. He gave no signal of his purpose to make a left turn, nor did he drive beyond the center of the intersection before turning, but drove diagonally across Mallory avenue, passing approximately 35 feet east of the center of the intersection, or about half-way between the center of the intersection and the end of the grass plot. He was driving slowly, at a speed estimated by plaintiff's witnesses to be from three to seven miles an hour, and had reached the south lane of Mallory avenue, some eight or ten feet from the southeast corner of the intersection, when his car was struck by Lanier's car.

The Johnson car was struck on its right side, the force of the collision pushing its rear end around so that when it came to rest it was facing west, with its left rear wheel about two feet from the curb at the southeast corner of the intersection. There was evidence for the plaintiff that the rear end of the car was then in Mallory avenue and the front end in King street--that is, in the intersection. One of her witnesses testified that all of the car was then in Mallory avenue and none of it within the intersection. After the collision Johnson got out of his car and walked around it ana men got back in. He was later taken to a hospital, where he died some three weeks later as a result, according to the medical testimony, of the effect of the collision on his preexisting physical condition.

The evidence is without conflict that Johnson was driving diagonally across Mallory avenue, as described, and that he did not enter the intersection until just •before reaching the south traffic lane of Mallory avenue, in which defendant was approaching and into which Johnson drove immediately before he was struck. Maps were introduced in evidence, on which plaintiff's witnesses pointed out the course of Johnson's journey and the place where the accident occurred. One of these witnesses, Trainham, had just driven up going north on King street and was sitting in his car at the southeast corner of the intersection waiting for the light to change. He saw both cars approaching and saw the collision. He said that when the Johnson car cut across it was headed straight toward him until he wondered how it was going to miss him, but that it was struck in the south lane of Mallory avenue before it got to him.

In undertaking so to drive across Mallory avenue to enter North King street, without proceeding past the center of the intersection of the two streets, and without giving any signal to indicate his purpose to make such a move, Johnson violated the statutes requiring that he do both, Code 1942 (Michie), §§ 2154(121) (a) and 2154 (122); Code 1950, §§ 46-231, 46-233, 46-234. He was, therefore, guilty of negligence, which, under the facts of this case, was an efficient cause of his death and bars recovery. Virginia Electric & Power Co. v. Clark, 179 Va. 596, 601, 19 S.E.2d 693, 695; Standard Oil Co. of New Jersey v. Roberts, 130 Va. 532, 107 S.E. 838; Hubbard v. Murray, 173 Va. 448, 3 S.E.2d 397; Hamilton v. Glemming, 187 Va. 309, 46 S.E.2d 438; Powell v. Virginian Ry. Co., 187 Va. 384, 46 S.E.2d 429; Scott v. Simms, 188 Va. 808, 51 S.E.2d 250.

The facts proved fail to establish elements of the last clear chance doctrineessential to entitle plaintiff to recover in spite of her decedent's negligence. The evidence is sufficient, perhaps, to establish that the defendant was negligent in driving too fast through the intersection and that such negligence was a proximate cause of the collision, but the negligence of the decedent is undeniable and that it contributed to the collision is plain.

The doctrine of last clear chance does not supersede the defense of contributory negligence. Frazier v. Stout, 165 Va. 68, 181 S.E. 377. 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 of it, and the defendant is not liable. Green v. Ruffin, 141 Va. 628, 125 S.E. 742, 127 S.E. 486; Yellow Cab Corp. of Abingdon v. Henderson, 178 Va. 207, 16 S.E.2d 389; Stuart v. Coates, 186 Va. 227, 42 S.E.2d 311; Anderson v. Payne, 189 Va. 712, 54 S.E.2d 82.

These principles of the last clear chance doctrine preclude its application under the facts of this case. Here the evidence shows beyond question that at all times while the decedent slowly drove diagonally across Mallory avenue he had a clear view of the approaching car, and had he looked he was bound to have seen it. At any time after he started his left turn he could have stopped before reaching the...

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