Nelson v. Dayton

• Decision Date: 14 January 1946
• Parties: NELSON et al. v. DAYTON.
• Court: Virginia Supreme Court

36 S.E.2d 535

184 Va. 754

NELSON et al.

v.DAYTON.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Error to Circuit Court of Roanoke County; Earl L. Abbott, Judge.

Action by Mrs. Jean Dayton against A. L. Nelson and another for injuries sustained when struck by defendants' bus. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Before CAMPBELL, C J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Fred B. Gentry and B. E. Estes, both of Roanoke, for plaintiffs in error.

T. Warren Messick and Dirk A. Kuyk, both of Roanoke, for defendant in error.

BROWNING, Justice.

The learned Judge of the Trial Court incorporated in the record his opinion in this case. It is eminently sound and well expresses our views, hence we adopt it as the opinion of this court, with the exception of the first two paragraphs which are not necessary to its understanding.

"The accident occurred between 10 and 11 o'clock p. m. on the night of December 16, 1942, at the intersection of Sunset Drive and Route No. 24 in Roanoke county near what is known as Lakeside, about 2.3 miles west of the corporate limits of the city of Roanoke. Route No. 24 is a state highway, 27.8 feet wide, with three lane paved surface running between the city of Roanoke and Salem, Virginia. The traffic over this highway is usually heavy. It runs east and west and is straight for a distance of at least 1000 feet east of Sunset Drive and for approximately one-half mile west of the intersection. The night was clear and dry. No vehicles were parked upon the highway in either direction that might interfere with the vision of the bus driver or of Mrs. Dayton. At the intersection are stores, residences and a filling station. The area is used and occupied for residential purpose. With the exception of Lakeside Park the area on both sides of the highway is thickly settled though the dwellings are not built close to each other.

"On the night in question, the plaintiff, who lives on Sunset Drive and is a voluntary Salvation Army Worker, had been to Catawba Sanitorium in an automobile owned and operated by C. A. M. Woodson. With them were Mrs. Irene Davenport and Lt. Evelyn Justice. Upon their return Woodson parked his car on the south side of the highway at a point where a street, known as Route No. 629, intersects it, for the purpose of discharging plaintiff and Mrs. Davenport, who lived across the highway on Sunset Drive. Sunset Drive intersects the highway on the north and slightly west of the point opposite where Route No. 629 intersects on the south.

"After plaintiff and Mrs. Davenport alighted from the car Woodson pulled away in the direction of the city of Roanoke. Plaintiff and Mrs. Davenport walked westerly along the south side of the highway to a point directly opposite the intersection of Sunset Drive, and when the Woodson car had proceeded about 200 feet up the highway, then proceeded to cross the highway in the direction of Sunset Drive. Before attempting to cross the highway they looked in both directions for the approach of vehicles. No vehicles were approaching from the west. Towards the east, which would be on the plaintiff's right as she proceeded across the highway, they saw the lights of a vehicle approaching, at that time it was up about the Tabernacle or church, a distance of 1000 feet. Bothplaintiff and Mrs. Davenport thought they had ample time to cross the highway in safety. Without looking again, they proceeded across the highway, walking rather fast. Mrs. Davenport crossed safely. Plaintiff was a step or two behind her and when she reached a point in one step of the edge of the hard surface on the opposite or northern side of the highway, she was struck by the right front fender of defendant's bus. The bus driver had a clear and unobstructed view of the highway and of the two ladies.

"He testified that he did not see plaintiff until he was within 40 or 45 feet from her. He made an effort to miss striking her by slightly turning his bus to the left but was unable to do so. When he first saw plaintiff she was in the middle lane going toward the white line toward the right. He further claimed he was blinded by the lights of the Woodson car, which was, according to his evidence, about 60 feet from the point of the collision. Lt. Evelyn Justice, who was in the Woodson car, testified the distance was about 200 feet from the intersection when the bus met the Woodson car. The testimony of the plaintiff, as to the distance away of the car, at the time she proceeded to cross the highway, would place it even farther.

"If the lights on the bus were in proper working order and properly adjusted, the driver of the bus, unless blinded by the lights from the Woodson car, could have seen plaintiff when he was 300 feet away. If he was blinded by the lights of the Woodson car he still had 200 feet in which to have seen her. The jury have by their verdict resolved this conflict in favor of the plaintiff. It would thus appear that the driver of the bus was not looking or he would have seen the plaintiff at least 200 feet away, or if he was looking he should have seen her. It also appears from the evidence that although he claims to have been blinded by the lights from the Woodson car, he did nothing to keep his bus under better control, but proceeded in the same manner as before. In the well considered case of Yellow Cab Corp. v. Henderson, 178 Va. 207, 16 S.E.2d 389 [394], Justice Spratley, speaking for the court said: 'One who drives faster than he should drive into a cloud of dust, in a snowstorm, or in the face of blinding headlights, is required under such circumstances, in the exercise of ordinary care, to increase his diligence to avoid injury to any one who may be on the highway in front of him.' Citing Clark v. Parker, 161 Va. 480, 171 S.E. 600; [State of Maryland for Use of] Joynes v. Coard, 175 Va. 571, 8 S.E.2d 454.

"Further according to the driver's testimony, he first saw the plaintiff when he was 60 feet away and she was in the middle lane. At that point she had about 14 feet to travel; while he was traveling 60 feet. Yet he struck her when she was within one step of safety. On this basis he was traveling at such speed he could easily have brought his bus to a stop or have avoided striking her altogether. His speed would be about 16 miles per hour and this is of course not correct as he places it at 35 miles per hour. The distance of 200 feet or more, as fixed by the evidence of the plaintiff seems more logical.

"The defendant contends the verdict is contrary to the law and the evidence and without sufficient evidence to sustain it. He further contends the court should have sustained his motion to strike the plaintiff's evidence. Upon a consideration of all the evidence it appears that the evidence of the plaintiff is sufficient to support the verdict. Not only did he fail to maintain a proper lookout for the plaintiff at the street intersection but he likewise failed to bring his bus under control when he was blinded by the lights from the Woodson car, if he was blinded. His own statement shows him to be guilty of negligence. Further, it would appear from all the evidence that the plaintiff had the right of way at the intersection which he failed to yield to her.

"Defendant next contends that the plaintiff was guilty of contributory negligence as a matter of law which precludes her recovery. The matter of her negligence was properly submitted to the jury, who by their verdict have found that her negligence, if any, did not contribute to the collision. In Thornton v. Downes, 177 Va. 451, 14 S.E.2d 345 [348] it was held that the question whether a pedestrian who is struck by an automobile in an intersection exercised proper care, or has been guilty of contributory negligence 'is almost invariably one for the jury, ' where the evidence is in conflict. If there is no conflict there is no question of fact for the jury.

"It may be conceded that the plaintiff was guilty of negligence. It was her duty, under the circumstances, to exercise care commensurate with the danger which the situation presented. Although she had the right of way this does not give her the right to cross highways or streets in front of moving vehicles, if to do so endangers her safety. On the other hand, to wait for all vehicles to pass along a highway, disregarding her right of way, might prevent her from ever crossing the highway. Thus there is also a duty on the part of drivers of vehicles at intersections. Her negligence was in not looking again...