Penoso v. D. Pender Grocery Co

• Decision Date: 24 February 1941
• Citation: Penoso v. D. Pender Grocery Co, 177 Va. 245, 13 S.E.2d 310 (1941)
• Court: Virginia Supreme Court
• Parties: PENOSO. v. D. PENDER GROCERY CO.

13 S.E.2d 310

PENOSO.

v.D. PENDER GROCERY CO.

Supreme Court of Appeals of Virginia.

Feb. 24, 1941.

Error to Circuit Court of City of Portsmouth; B. D. White, Judge.

Action by June Penoso against D. Pender Grocery Company, for damages arising out of a collision between plaintiff's automobile and defendant's truck. Judgment was entered in favor of defendant notwithstanding a verdict for plaintiff, and the plaintiff brings error.

Affirmed.

Argued before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

A. A. Bangel, of Portsmouth, for plaintiff in error.

Venable, Miller, Pilcher & Parsons, of Norfolk, for defendant in error.

GREGORY, Justice.

This case arose out of a collision between an automobile and a truck. At the conclusion of plaintiff's evidence in the trial below, the court granted defendant's motion to strike the evidence and on its own motion instructed the jury that there was no evidence in the case on which they might find for the plaintiff. Despite this, the jury returned a verdict for the plaintiff in the amount of $500. Thereupon defendant moved that this verdict be set aside as contrary to the law and evidence, and the court sustained the motion.

The question which we are called upon to decide is whether plaintiff's evidence revealed that she was guilty of negligence as a matter of law and hence precluded from recovering, or whether a jury question was presented.

No evidence was introduced on behalf of the defendant. The circumstances of the accident, as disclosed by the testimony of the plaintiff and two police officers, were as follows: About 8:30 on the evening of December 14, 1939, Mrs. June Penoso, the plaintiff, was driving northward on Chestnut Street in Portsmouth. As she reached the intersection of Chestnut Street and County Street, she stopped, looked both ways, and proceeded into the intersection. As she reached the far side of the intersection, her car was struck almost broadside by defendant's truck, which was proceeding westward on County Street. Plaintiff's car was damaged considerably, and she suffered physical injuries which she testified had continued to the time of the trial.

Mrs. Penoso testified that when she looked to her right up County Street she saw the headlights of the defendant's truck. She estimated that it was about "a half a block" away, and when pressed more closely said this distance was sixty to seventy feet. She proceeded into the intersection and did not see the truck again until it was virtually upon her--some five or ten feet away.

When she first saw the truck she assumed its speed to be about fifteen miles per hour, but said that in view of the ensuing circumstances it "must have been" going thirty or thirty-five miles per hour.

It is not necessary further to relate the testimony in the case. Mrs. Penoso in her own testimony has set forth that, from a full stop, she started into an intersection in the path of a vehicle some seventy feet away. She further said that although her car was moving slowly and could have been stopped at any time, she did not apprehend the collision until the oncoming truck was some ten feet away. The inescapable conclusion is that she was not keeping a proper lookout. She testified that there was no other moving vehicle in sight, and the fact...