Moore v. Virginia Transit Co., Record No. 3378.
| Decision Date | 22 November 1948 |
| Docket Number | Record No. 3378. |
| Citation | 188 Va. 493 |
| Court | Virginia Supreme Court |
| Parties | JAMES L. MOORE, AN INFANT, ETC. v. VIRGINIA TRANSIT COMPANY, ET ALS. |
1. NEGLIGENCE — Violation of Statute or Ordinance as Standard. — Violation of a statute or ordinance adopted for the safety of the public is negligence in that it is the failure to exercise that standard of care prescribed by a legislative body, but this is not the exclusive standard to which the conduct of a responsible party must conform to avoid being negligent.
2. NEGLIGENCE — Pleading — Sufficiency of Allegation — Case at Bar. — In the instant case, an action to recover for injuries sustained by plaintiff when the automobile in which he was riding struck defendants' stalled bus, the notice of motion stated that defendants "did negligently have a bus on the streets of Norfolk, Virginia, and as a result of * * * said negligence" plaintiff sustained the injuries of which he complained. Defendants contended that since plaintiff did not expressly prove that the bus was stopped or parked contrary to provisions of city ordinance it must be presumed that the bus was parked in accordance with the provisions of city ordinance. No bill of particulars was requested or given.
Held: That while plaintiff should have been more specific in the pleading of his case, the charge was so general that it included any failure of defendants to exercise ordinary care.
3. NEGLIGENCE — Definition. — Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such person would not have done under existing circumstances. The duty is dictated and measured by the exigencies of the occasion.
4. AUTOMOBILES — Collision of Automobile with Stalled Bus — Sufficiency of Evidence to Prove Negligence of Operator — Case at Bar. — In the instant case, an action to recover for injuries sustained by plaintiff when the automobile in which he was riding struck defendants' stalled bus, the evidence showed that the bus was stalled at night upon a main arterial highway in the city, at a site where the paved portion of the highway was only nineteen feet wide and at a time when traffic was constantly moving. The bus was stopped in such manner as to obstruct practically the entire width of the east traffic lane. It was permitted to remain in this position for more than an hour without displaying lights or other warning signals. The trial court sustained the defendants' motion to strike and the jury returned a verdict for defendants.
Held: That the question of defendants' negligence should have been submitted to the jury under proper instructions since reasonable men might differ on the question of whether defendants exercised care in leaving a bus without lights on the street in the manner described.
5. STREETS AND HIGHWAYS — Obstructions — Right to Assume Street Is in Safe Condition. — The traveling public using a main arterial street or highway in the ordinary manner have the right to act on the assumption that the highway through its entire traveled portion is in a reasonably safe condition and they are not required as a matter of law to be on the lookout for either defects or obstructions therein.
6. STREETS AND HIGHWAYS — Obstructions — Crime Both by Common Law and Statutes. — It is a crime, both at common law and by statute, to obstruct a public highway.
7. STREETS AND HIGHWAYS — Obstructions — Civil Liability May Be Based on Common Law. — The civil liability of a party obstructing a highway is not always based upon the fact that a statute prohibits such obstruction, but such liability may be, and frequently is, based upon the violation of a common law duty that such person owes to the traveling public.
8. JUDICIAL NOTICE — Local Laws. — The Supreme Court of Appeals will not take judicial notice of local laws.
9. AUTOMOBILES — Collision of Automobile with Stalled Bus — Duty of Defendants to Prove Bus Parked in Accordance with Ordinance — Case at Bar. — In the instant case, an action to recover for injuries sustained by plaintiff when the automobile in which he was riding struck defendants' stalled bus, defendants contended that since plaintiff had not expressly proven that the bus was stopped or parked contrary to the provisions of city ordinance, there was no duty upon them to display lights or warning signs of the obstructions, and that in the absence of such evidence it must be presumed that the bus was parked in accordance with the provisions of the ordinance. Plaintiff based his charge of negligence, not upon the violation of an ordinance, but upon the breach of a common-law duty.
Held: That the contention of defendants amounted to an affirmative defense and, therefore, the burden was upon them to prove the enactment of an ordinance regulating the parking of motor vehicles under the circumstances disclosed.
Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. J. Hume Taylor, judge presiding.
The opinion states the case.
Robert H. May, for the plaintiff in error.
T. Justin Moore, Leigh D. Williams and Lawson Worrell, Jr., for the defendants in error.
Plaintiff, a minor, nine years of age, instituted this action by his father and next friend to recover damages for personal injuries sustained in a collision of the automobile in which he was riding with a bus owned by the Virginia Transit Company and operated by E. L. Saunders. On the conclusion of the introduction of plaintiff's evidence the trial court sustained defendants' motion to strike. The jury, in obedience to this ruling of the court, returned a verdict for defendants.
The only question presented is whether the evidence tending to establish negligence of defendants is sufficient to submit the issue to the jury.
About seven o'clock p.m. on March 22, 1947, E. L. Saunders was operating a passenger bus east on East Ocean View avenue, a part of Highway No. 60, in the city of Norfolk. When he stopped his bus at the intersection of Grove avenue for the purpose of discharging passengers, his motor stalled, and he left the bus and went to a near by telephone and notified his employer that his bus had broken down. He returned to the bus and, without displaying any lights, took a seat inside and talked to his brother for some time.
Route No. 60, or East Ocean View avenue, extends east and west. The paved portion is nineteen feet one inch wide with a narrow dirt shoulder, somewhat soft, to the south and a gravel shoulder thirty feet wide on the north, which is used for parking. The operator did not know the length or width of the bus. He estimated the width to be ten or twelve feet. The bus stopped with all four wheels on the paved surface, its right side close to the southern edge.
James H. Moore, the father of plaintiff, was driving his 1931 Ford coupe at approximately 20 miles an hour east on East Ocean View avenue, with the headlights depressed. The plaintiff was seated on the extreme right of the front seat, his small sister sitting between him and his father. As Moore approached the intersection with Grove avenue he saw a number of motor vehicles traveling west with the headlights burning. He was blinded by one or more of the lights of these westbound cars and did not see the bus until he was within 25 feet of it, and at the same time a westbound car was opposite the bus. He immediately cut his car to the left and applied his brakes, but was unable to avoid running into the rear of the bus, thereby causing the injuries of which plaintiff complains.
Plaintiff introduced three ordinances of the City of Norfolk, Chapters 21,1 262 and 49.3 Defendants introduced section 939, Article I, Chapter 49, of the Motor Vehicle Code of the city which provides, "No lights need be displayed upon any vehicle when parked in accordance with Article II of this chapter."
Defendants contend that plaintiff's evidence did not establish a prima facie case of negligence. This contention is based on the alleged failure of plaintiff's evidence to prove that defendants violated the provision of any of the ordinances introduced.
The only ordinance introduced in evidence regulating the parking of motor vehicles upon the streets of the city is section 975 (see footnote 3), which prohibits any parking within certain areas. It appears from the evidence that there were no curb lines on either Grove avenue or East Ocean View avenue and the distances from the property lines are not disclosed with sufficient accuracy for us to ascertain whether or not the bus was stopped within a prohibited area.
The defendants' position is, that since the plaintiff did not expressly prove that the bus was stopped or parked contrary to the provisions of the city ordinance, there was no duty upon them to display lights or warning signs of the obstruction, and that in the absence of such evidence it must be presumed that the bus was parked in accordance with the provisions of the ordinance.
1, 2 Violation of a statute or a municipal ordinance adopted for the safety of the public is negligence in that it is the failure to...
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Moore v. Va. Transit Co
...50 S.E.2d 268188 Va. 493MOORE .v.VIRGINIA TRANSIT CO. et al.Supreme Court of Appeals of Virginia.Nov. 22, 1948[50 S.E.2d 269]Error to Law ... ...