Mcgowan v. Tayman

• Decision Date: 18 March 1926
• Citation: 144 Va. 358
• Parties: F. E. MCGOWAN AND F. C. MCGOWAN v. LLOYD TAYMAN, BY RALPH TAYMAN, HIS FATHER AND NEXT FRIEND.
• Court: Virginia Supreme Court

Page 358

144 Va. 358

F. E. MCGOWAN AND F. C. MCGOWAN v. LLOYD TAYMAN, BY RALPH TAYMAN, HIS FATHER AND NEXT FRIEND.

Supreme Court of Virginia, Richmond.

March 18, 1926.

1. PHOTOGRAPHS — Admissibility in Evidence — Action Arising Out of a Collision Between a Bicycle and an Automobile — Case at Bar. — The instant case was an action by plaintiff against defendant for injuries arising from a collision between plaintiff's bicycle and defendant's automobile. The accident occurred at the intersection of two streets, and during the trial the plaintiff was allowed to put in evidence two photographs for the purpose of showing a bicycle in one of these streets above the place of the collision and introduced the photographer to explain that the photographs were taken from certain positions in the other street. The court directed the jury to disregard the bicycle shown in the photographs and to regard the photographs only as a view of the location of the accident. The jury were permitted to view the seene of the accident.

Held: That, under these circumstances, the admission of the photographs in evidence was not reversible error.

2. AUTOMOBILE — Collision with Bicycle — Bicycle Rider Coasting Down Hill — Last Clear Chance — Case at Bar. — The instant case arose out of a collision between plaintiff riding a bicycle and defendant's automobile at the intersection of two streets. Plaintiff was coasting down grade at a high rate of speed without brakes, with another boy seated in front of him on the cross-bars of the bicycle, when the collision took place.

Held: That plaintiff was guilty of negligence and could not recover except under the doctrine of last clear chance.

3. AUTOMOBILES — Negligence — Pesumption of Negligence — Burden of Proof on Plaintiff — Case at Bar. — In an action by the rider of a bicycle against the driver of an automobile, for injuries incurred in a collision at the intersection of two streets, negligence on the part of the defendant cannot be assumed merely because in the collision with the defendant's automobile the plaintiff was injured; but the burden rests upon the plaintiff to establish negligence on the part of the defendant by a preponderance of evidence; and, if the plaintiff fails to do this, the jury must find for the defendant.

4. AUTOMOBILES — Law of Road — Right of Driver Approaching from the Right. — A right of way ordinance of a city that requires the driver of a vehicle to give the right of way to the driver of another vehicle approaching from the right at street intersections is designated to prevent the stoppage of traffic; otherwise the vehicles have equal rights in the use of the streets, and the right of the driver coming from the left only yields to the driver coming from the right when necessity arises.

5. AUTOMOBILES — Collisions Between Automobile and Bicycle at Street Intersection — Right of Way — Case at Bar. — In an action for injuries sustained by plaintiff in a collision with defendant's automobile at the intersection of S. and H. streets of a city, it was not error to instruct the jury that if they believed that the plaintiff, under fourteen years of age, was coasting upon a bicycle down S. street grade, with intent to cross H. street, and run up the grade on the other side of H. street, and that his bicycle was traveling at such speed that the defendant could not in the exercise of reasonable care have stopped his car so as to prevent the coasting bicycle from running into his automobile, and thus injuring the plaintiff, then defendant was not guilty of negligence, notwithstanding that plaintiff was approaching from defendant's right.

6. AUTOMOBILES — Collision Between Automobile and Bicycle — Sudden Emergency — Last Clear Chance. — In the instant case, an action by plaintiff for injuries arising out of a collision with defendant's automobile, at a street intersection, although plaintiff's bicycle was coming down grade very rapidly and not under control, yet if defendant discovered plaintiff's peril in time, by the exercise of reasonable care, to have stopped his car and thus avoided the accident, and he failed to exercise such care, then he was guilty of negligence unless he acted in a sudden emergency as a person of ordinary prudence might have done in a like situation.

7. AUTOMOBILES — Collision Between Automobile and Bicycle — Sudden Emergency — Case at Bar. — Where there was a collision between plaintiff's bicycle and defendant's automobile at an intersection of streets, if defendant discovered the bicycle of plaintiff moving rapidly down to the street intersection not under control, a sudden emergency was presented to him of either going foward or stopping his car to avoid imminent collision; and, if defendant undertook to speed up his car and thus avoid the danger, and his action was such that a person of ordinary prudence might have taken under a like situation, but he failed to avoid collision, he would not be guilty of negligence because another course might have been more judicious.

8. DAMAGES — Personal Injury — Case at Bar. — In an action by a bicycle rider for injury incurred in a collision with an automobile, the jury, in estimating the damages, may take into consideration the bodily injury, disability and disfigurement sustained by the plaintiff, if any, and the permanent or temporary character thereof, and the pain and mental anguish caused by said injuries, if any, and fix the amount of damages at such sum as will be a just, reasonable, and proper compensation therefor, provided, however, such damages shall not exceed the amount sued for.

9. AUTOMOBILES — Negligence — Last Clear Chance. — In an action by a bicycle rider for injuries arising out of a collision with an automobile, where it appeared from the evidence that plaintiff was negligent, the jury could not find a verdict against defendant unless they believed him guilty of negligence after having discovered that plaintiff was in imminent peril.

10. INSTRUCTIONS — Refusal of Instructions — Jury Sufficiently Instructed. — It was not error to refuse instructions offered by the defendant where the instructions given by the court sufficiently instructed the jury as to the law applicable to the facts of the case.

11. NEGLIGENCE — Sudden Emergency — Own "Best Judgment" — Care to be Exercised. — Where a person without fault on his part is placed in sudden peril or sudden emergency, he is required to exercise such ordinary care as a person of ordinary care and prudence would be expected to exercise if confronted with the same sudden emergency or peril. His "own best judgment" is not the test.

12. NEGLIGENCE — Sudden Emergency — Care to be Exercised — Question for Jury. — While a person confronted with a sudden emergency or peril is not required to adopt the wisest course, nor to exercise the same degree of care which a reasonably careful man would be required to exercise under ordinary circumstances, he must exercise such care as a man of ordinary prudence would be expected to exercise in a like situation, and whether he exercised such care is for the jury's determination.

13. NEGLIGENCE — Last Clear Chance — Statement of the Doctrine. — The doctrine of last clear chance has no application to the defendant except where the plaintiff is guilty of negligence; but such negligence, even though it continued up to the moment of the injury, does not relieve the defendant of liability if he knew or ought to have known the peril in which the plaintiff had negligently placed himself and had a clear chance, notwithstanding such negligence, to save him from injury. His failure to avail himself of such last clear chance is negligence which becomes the proximate cause of the plaintiff's injury.

14. AUTOMOBILES — Collision Between Automobile and Bicycle at Street Crossing — Sudden Emergency — "Best Judgment" — Case at Bar. — In the instant case the defendant was an experienced automobile driver. He was driving at the time of the accident not exceeding seventeen miles an hour with his foot on the brake. When he came to the intersection of the street upon which he was driving with another, he saw two boys on a bicycle coming down the intersecting street at a terrific rate of speed and realized that the bicycle was beyond their control and that a collision was imminent. Instead of stopping, he increased his speed in an effort to cross the street before the bicycle reached the intersection. He saw his mistake and turned his car to the left but the bicycle struck his car on the center of the side door. He testified that he used "his best" judgment in the emergency.

Held: That it cannot be said that, as a matter of law, defendant used in the emergency the same care and prudence which a man of ordinary care would be expected to use under like circumstances, and the finding of the jury that he did not could not be disturbed.

Error to a judgment of the Corporation Court of the city of Lynchburg, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendants assign error.

The opinion states the case.

Fred Harper, for the plaintiffs in error.

Royston Jester, Jr., and John L. Lee, for the defendant in error.

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

Lloyd Tayman recovered a judgment for $6,500 against F. E. McGowan and F. C. McGowan for personal injuries resulting from a collision between his bicycle and an automobile driven by F. C. McGowan. This writ of error is to that judgment.

Harrison street, in the city of Lynchburg, Virginia, is one of the principal thoroughfares of the city. Seventh street crosses Harrison practically at right angles. Seventh street descends at a steep grade from Federal street to Harrison, and ascends a considerable grade from Harrison to Madison street. On January 15 1924, Lloyd Tayman, the plaintiff, a boy about twelve years of age, was riding his bicycle down Seventh street, towards Harrison street, with Thomas Callahan, a boy nine years old,...