CAMPBELL, J. This is a proceeding by notice of motion, by the plaintiff in error
who was plaintiff in the court below, against the defendants in error, to recover damages in the sum of $850, for the alleged injury to the plaintiff in error's automobile.
Upon the trial of the case by a jury, a verdict was rendered in favor of defendants in error.
For convenience, the parties litigant will be referred to as plaintiff and defendants, according to the position they occupied in the court below.
The plaintiff, an experienced automobile driver, having driven cars for 10 or 12 years, was, on the day of the accident, traveling west on Shepherd street, in the city of Petersburg, and had reached the intersection of Dunlop and Shepherd streets, when there was a collision between the car of plaintiff and the car of defendant Rainey Luggage Corporation, which was being driven by its employee and agent, Raymond L. Andrews, who was running in a southwardly direction along Dunlop street.
The condition of the weather, as stated by one of the witnesses, "was a cloudy and rainy day." The plaintiff states that at the time of the accident he was running at a rate of speed of about 15 miles per hour; Andrews states that he did not have a speedometer, but was satisfied he was not traveling over 20 miles per hour.
Under the ordinances of the city of Petersburg, it is provided:
"When two or more vehicles approach the intersection of the public road or street at approximately the same time, the vehicle approaching such intersection from the right shall have the right of way over the vehicle approaching from the left."
It is further provided:
"That vehicles shall keep as near the right-hand curb as possible, and at intersections shall not exceed a rate of speed of twenty miles per hour."
It is conceded by counsel for the plaintiff and defendants that the ordinances regulating traffic in the city of Petersburg are reasonable and valid.
The following instructions were given by the court, the first five of which were given at the request of the plaintiff, and the remaining instructions, Nos. 6, 7, and 8, were given at the request of the defendants:
"1. The court instructs the jury that they must find a verdict in favor of the plaintiff against Raymond L. Andrews if they believe from the evidence:
"First. That the accident was proximately caused by the failure of said Andrews to use ordinary care, that is to say, such care as an ordinarily careful man would have used under the same or similar circumstances, on the occasion in question, or by his running at a rate of speed in excess of that fixed by the city ordinance, if the jury believe from the evidence that he did so, without the want of ordi-nary care on the part of the plaintiff that helped to bring about the accident; or
"Second. That, even though the plaintiff may have failed to use ordinary care, or may have entered upon the intersection of the street when said Andrews had the right of way, yet the said Andrews, after he saw the plaintiff's automobile on said intersection and in danger of being run into, or in the exercise of ordinary care could have seen the same thereon and in such danger, in time to have averted the accident by the use of ordinary care.
"2. The court instructs the jury that if they believe from the evidence that the plaintiff was proceeding westwardly toward Shepherd street, about the middle of the roadway, and that a short distance before coming to the intersection of said street and Dunlop street he blew his horn and looked diagonally to the right from a point at which he could see a considerable distance up Dunlop street and could see no car approaching, and that he then entered upon the intersection of the two streets and proceeded across, then it is for the jury to say from said evidence, taken in connection with all the other evidence in the case, whether such action on the part of said plaintiff showed a want of ordinary care; that is to say, such care as an ordinarily careful man would have taken under the same or similar circumstances.
"3. The court instructs the jury that under the city ordinance, when two vehicles approach the intersection of two streets at approximately the same time, the vehicle approaching such intersection from the right has the right of way over the vehicle approaching from the left.
"If, therefore, you believe from the evidence that the plaintiff was proceeding west on Shepherd street, and that the defendant Andrews was proceeding south along Dunlop street, and that they reached the intersection of said streets at approximately the same time, then said Andrews had the right of way over the plaintiff under the city ordinance. But if the jury believe from the evidence that when the plaintiff reached said intersection, Andrews was so far therefrom that in the opinion of the jury said plaintiff and Andrews could not be said to have reached said intersection at approximately the same time, then the plaintiff had the right of way.
"But even though the jury may believe from the evidence as applied to the city ordinance that Andrews had the right of way and that the plaintiff entered upon the intersection without having the right of way, still this would not relieve Andrews from the duty of using ordinary care to see and avoid running into the plaintiff's machine, and if they believe from the evidence that Andrews saw, or by the exercise of ordinary care could have seen, that the plaintiff was passing over the intersection of the streets and would likely be struck if he (Andrews) did not stop his machine or slacken its speed or change its course, and that after he saw this, or in the exercise of ordinary care could have seen it, he could by the exercise of ordinary care have averted the accident and did not do so, then he was guilty of such negligence as entitled the plaintiff to. a verdict against him.
"4. The court instructs the jury that, if an employee is in control of the master's property and about the master's business at the time of an accident, the master is not relieved from
responsibility because such employee may have acted improperly in the management of said property, or because he may have failed to perform his duty in the strictest and most convenient manner, as, for instance, when such employee, on the master's business, deviates from the most direct road, to accomplish some purpose of his own. In such case he is still discharging the master's business, though coupled with his own affairs. The joinder of the servant's and the master's business will not relieve the master from responsibility, if the deviation is not too extensive.
"If therefore the jury believe from the evidence that the defendant Andrews was driving the car of the Rainey Luggage Corporation, and was going to Richmond on said company's business, then the jury should find a verdict in favor of the plaintiff against said corporation, in the event they shall come to the conclusion, under the instructions and evidence before them, that said Andrews was responsible for the accident, and this is true even though they may believe from the evidence that said Andrews deviated from the most direct course to Richmond, unless they are of the opinion from the evidence that such deviation was so extensive as to show that he was not at the time in the discharge of the company's business as well as about his own affair.
"5. The court instructs the jury that in the event they should be of the opinion to find a verdict in favor of the plaintiff, they should allow him such sum as the evidence shows will fairly compensate him for the loss sustained by him by reason of the damage done him.
"6. The court instructs the jury that the burden is on the plaintiff to prove that the defendant Andrews was negligent in one or more of the particulars named, and that such negligence was the proximate cause of the damage to the plaintiff's car, and that this must be proved by a preponderance of the evidence; that is, the evidence of the plaintiff must outweigh the evidence of the defendant. However, if you believe that the plaintiff was negligent and that his negligence was the proximate cause of the injury, you cannot find a verdict in his favor; but you must find a verdict for the defendant. If you believe that both parties were negligent and that the damage resulted from their combined negligence and that such negligence continued to the very moment of the collision, then you cannot weigh the negligence of the one against that of the other, for the negligence of the plaintiff bars a recovery under such circumstances, and you must find for the defendant.
"7. The court instructs the jury that if the plaintiff relies upon the allegation that the defendant had the last clear chance to avert the accident and failed to do so, the burden is upon him to prove by a preponderance of the evidence that after the peril became imminent, there was a clear opportunity afforded Andrews to prevent the accident. The rule presupposes that an appreciable interval of time intervenes between the prior negligence of the plaintiff and the subsequent negligence of the defendant, and it does not apply where the negligence of both continues down to the very moment of the accident and contributes to the injury. Under such circumstances, there can be no recovery.
"8. The court instructs the jury that if youbelieve from the evidence that Andrews was negligent and that the plaintiff by the exercise of ordinary care should have discovered such negligence in time to have avoided the consequences...
