Pistolesi v. Staton

• Decision Date: 20 July 1973
• Docket Number: No. 72-2468.,72-2468.
• Citation: 481 F.2d 1218
• Parties: Mario PISTOLESI, Appellant, v. Joe STATON and Carrol Sue Dail Lucas, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

481 F.2d 1218 (1973)

Mario PISTOLESI, Appellant, v. Joe STATON and Carrol Sue Dail Lucas, Appellees.

No. 72-2468.

United States Court of Appeals, Fourth Circuit.

Argued April 3, 1973.

Decided July 20, 1973.

George H. McNeal, III, Norfolk, Va. (Wolcott, Spencer, Rivers & McNeal and William A. Wheary, III, Norfolk, Va., on brief), for appellant.

John B. Preston, Virginia Beach, Va. (Preston, Preston, Wilson & Tambert, Virginia Beach, Va., on brief), for appellee Staton.

L. S. Parsons, Norfolk, Va. (Parsons, Steffan & Moore, Norfolk, Va., on brief), for appellee Lucas.

Before BOREMAN, Senior Circuit Judge, WINTER, Circuit Judge, and BLAIR, District Judge.

BOREMAN, Senior Circuit Judge:

Appellant, Mario Pistolesi (plaintiff below), brought this diversity action to recover damages for personal injuries allegedly suffered in a traffic accident. Pistolesi charged that the concurrent negligence of appellees, Joe Staton and Carrol Lucas (defendants below), was the proximate cause of that accident. The jury returned a verdict in favor of defendants Staton and Lucas, and judgment was entered thereon. Upon appeal we affirm the judgment as to Lucas but reverse and remand as to Staton.

On August 10, 1971, Pistolesi, a hitchhiker, was riding in the back seat of a Volkswagen owned by Lucas and driven by Lilly Marlene Ellis. After about half an hour Ellis stopped the vehicle at a gasoline station and Lucas took over the driving. She drove south on U. S. Route 13 to Accomack County, Virginia, where her vehicle collided with a vehicle driven by Joe Staton.

The collision occurred at the intersection of U. S. Route 13 and Virginia State Route 648. Route 13 is a fourlane divided highway with a median strip separating the northbound and southbound lanes. Staton was proceeding west on Route 648 and had crossed the northbound lanes of Route 13. He testified that he stopped in the median and looked north for oncoming traffic before entering the southbound lanes but that he did not see the Lucas vehicle approaching from the north. When Staton had proceeded approximately twenty feet into the southbound lanes the right front of his vehicle was struck by the front of the Lucas vehicle.

The collision occurred in the country on a clear day during daylight hours. Staton had an unobstructed view to the north for over half a mile from the point where he drove into the southbound lanes. There were no traffic signs or signals at the median regulating traffic entering or crossing the southbound lanes from Route 648.

It is undisputed that the defendant Staton stopped his vehicle at the stop sign located at the junction of Route 648 and the northbound lanes of Route 13. He then proceeded across the northbound lanes and entered the median, forty-eight feet wide, which separated the northbound and southbound lanes of Route 13. The trial court instructed the jury that Staton had a duty to yield the right-of-way to vehicles traveling south on Route 13 but that a vehicle traveling on Route 13 "at an unlawful speed shall forfeit any right-of-way it might otherwise have." Pistolesi complains that the instruction was erroneous and that under no circumstances would a vehicle proceeding on Route 13 forfeit its right-of-way.

Under Virginia law "where a highway includes two roadways thirty feet or more apart, then every crossing of each roadway of such divided highway by an intersecting highway shall be regarded as a separate intersection . . . ." Virginia Code Annotated § 46.1-1(11)(b) (1972 Replacement Volume). Thus, the intersection of Route 648 and the southbound lanes of Route 13 constitutes a separate, unmarked intersection not controlled by the stop sign located at the intersection of Route 648 and the northbound lanes of Route 13.

The "general rule" in Virginia regulating unmarked intersections is that "when two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. . . ." Virginia Code Annotated § 46.1-221 (1972 Replacement Volume). Two exceptions to this rule are provided: (1) one entering a public road from a private road or driveway must stop and yield the right-of-way Virginia Code Annotated § 46.1-223 (1972 Replacement Volume); and (2) one "entering a highway, which is improved and hard surfaced and is a part of the State Highway System, from the side thereof, shall, immediately before entering such highway, stop. . . ." Virginia Code Annotated § 46.1-247 (1972 Replacement Volume).

The Lucas vehicle in which Pistolesi was riding was on the right of the Staton vehicle. Under any of the provisions noted above, Staton had a duty to yield the right-of-way to vehicles proceeding south on Route 13. However, unlike § 46.1-223 or § 46.1-247 there is a further provision in § 46.1-221 which states: "The driver of any vehicle traveling at an unlawful speed shall forfeit any right-of-way which he might otherwise have hereunder." The jurors were told that the Lucas vehicle would be considered as having forfeited its right-of-way if the jury found from the evidence that Lucas was traveling at an unlawful rate of speed at the time of the accident.

Pistolesi contends that § 46.1-247 controls and that it was error to tell the jury that Lucas might have forfeited her right-of-way. "Forfeiture of right of way because of speed does not occur in any case not arising under Section 46.1-221. . . ." Atwell v. Watson, 204 Va. 624, 630, 133 S.E.2d 552, 557 (1963).

Under Virginia law the mere fact that Route 13 served as a main artery for traffic does not give vehicles on that highway the right-of-way over vehicles entering from the side. King v. Eccles, 209 Va. 726, 167 S.E.2d 349 (1969). "In the absence of such an exception in the statute, there is no warrant for a favoring of the more important road over a less important road." Id. at 351. This would indicate that § 46.1-247 is not intended to require a vehicle entering a traffic artery from a less heavily traveled road to stop and yield the right-of-way. Thus, § 46.1-221 sets forth the rule controlling the right-of-way where two improved, hard surfaced roads constituting a part of the State Highway System intersect. The two exceptions to that rule, §§ 46.1-223 and 46.1-247, relate to the intersection of an improved hard surfaced road which is a part of the State Highway System and (1) "a private road, driveway, or alley" and (2) any unimproved, unpaved road which is not a part of the State Highway System, respectively.

It was undisputed at trial that Routes 13 and 648 were both improved, hard surfaced, and a part of the State Highway System. Hence, the general rule applies and it was the duty of the Staton vehicle, the vehicle on the left, to yield; the Lucas vehicle had the right-of-way subject to forfeiture thereof if the jury found that it was traveling at an unlawful rate of speed. We perceive no error in the court's instruction on this issue.

Pistolesi contends that the trial court erred in failing to rule that Staton was negligent as a matter of law for entering into the path of an approaching vehicle which Staton failed to see although he had an unobstructed view of this vehicle. Virginia case law supports plaintiff's contention. Viewing the facts in the light most favorable to Staton, we conclude that the court below should have ruled that Staton was negligent as a matter of law.

Staton's vehicle had crossed the median strip between the northbound and southbound lanes of Route 13 and stopped at the intersection of 648 and the southbound lanes of Route 13, an intersection uncontrolled by any traffic signs. From this point Staton intended to cross the southbound lanes of Route 13 and continue west on Route 648 toward Tasley, Virginia. Staton pulled away from the median strip and into the path of the Lucas vehicle which was approaching from Staton's right on Route 13.

Upon reaching an uncontrolled intersection with another highway, a driver has a duty to look for approaching traffic with reasonable care under all the surrounding circumstances. Caldwell v. Parker, 191 Va. 471, 62 S.E.2d 34 (1950); Angell v. McDaniel, 165 Va. 1, 181 S.E. 370 (1935). Thus, if the intersection is in a populated community and the speed limit is reduced, the duty to look may be discharged by observing traffic within a relatively short distance. If the intersection is in open country, where the view is unobstructed for greater distances and speed limits are much higher, the duty to look effectively may demand that the driver of the burdened vehicle observe the traffic approaching from a greater distance.¹

It is important to note, however, that if the favored oncoming vehicle is in such plain view that the driver of the burdened vehicle, looking with reasonable care, was bound to have seen it, then there is an absolute duty to see it. Von Roy v. Whitescarver, 197 Va. 384, 89 S.E.2d 346 (1955); Perry v. Thompson, 196 Va. 817, 86 S.E.2d 35 (1955); Oliver v. Forsyth, 190 Va. 710, 58 S.E.2d 49 (1950). Testimony indicates that Staton had a clear, unobstructed view of from one-half to one mile northerly from the intersection up Route 13 in the direction from which the Lucas vehicle was approaching. As stated, it was a clear day, the sun was shining and there were no obstacles to block his view. Under the surrounding circumstances (an intersection in the open country with a highway having a posted speed limit of sixty miles per hour and an unobstructed view of over 2,640 feet) Staton had an absolute duty to see the oncoming Lucas vehicle.

Staton claims, and Pistolesi testified, that the Lucas vehicle may have been traveling at a speed of seventy to seventy-five miles per hour. This would not excuse Staton's failure to observe the automobile. Excessive speed does not establish a reasonably satisfactory explanation as to why a driver did not see an oncoming vehicle. City Cabs, Inc., v. Griffith, 194 Va. 818...