Saunders v. Temple

• Decision Date: 12 June 1930
• Citation: 153 S.E. 691
• Parties: SAUNDERS. v. TEMPLE.
• Court: Virginia Supreme Court

153 S.E. 691

SAUNDERS.

v.TEMPLE.

Supreme Court of Appeals of Virginia.

June 12, 1930.

Code Supp. 1928, § 2145(73), subd. h, Acts 1926, p. 789, c. 474, requires pedestrian, obliged to use highway by absence of suitable sidewalk, to keep as near extreme left side or edge thereof as reasonably possible.

The evidence showed that right lamp of automobile was bent by impact; several witnesses testified that pedestrian was lying unconscious on extreme right edge ofconcrete roadway; the automobile was shown to have stopped within two feet of such edge, 15 feet or less from point of impact; and automobilist testified that weather was very cloudy and misty; that he could stop car in 15 feet; that plaintiff was not over four feet away when he first saw him; that headlights were good, but dimmed as required by law; and that other side of road was full of cars, lights of which obstructed his view.

Code 1919, § 6214, authorizes party to call adverse party as witness to cross-examine him.

Error to Hustings Court, Part 2, of Richmond.

Action by L. Ray Temple against W. Conway Saunders. Judgment for plaintiff, and defendant brings error.

Reversed and rendered.

W. W. Beverly and Scott, Lloyd & Scott, all of Richmond, for plaintiff in error.

T. Justin Moore and Warren L. Tiller, both of Richmond, for defendant in error.

PRENTIS, C. J.

This is an action for personal injury, in which the plaintiff below, Dr. L. Ray Temple, dentist, has recovered a substantial judgment against W. Conway Saunders, who is here assigning error and claiming that upon the evidence the court should have entered final judgment in his favor.

The plaintiff, Temple, while walking northwardly on the Boulevard about half way between the Fair Grounds bridge (over the tracks of the R. F. & P. R. Co.) and the Hermitage road, was struck by an automobile driven northwardly by Saunders. He was very seriously injured, his skull being fractured, apparently, from striking his head when he fell upon the concrete roadway. The Boulevard is a street 100 feet wide, and at the place of the occurrence has a concrete bed 27 feet wide covering the western portion of the highway. The other part of the street on the east is a smooth dirt roadway and path. Automobiles are presumed to use the 27 feet of concrete. The time of the injury was after dark, between 6 and 7 o'clock on Christmas Eve, December 24, 1926.

The plaintiff, who lived in the section known as Dumbarton, had been in his own automobile, which was driven by his son, but as his son was in a hurry to reach home so as to return to the city later, the plaintiff alighted from his own automobile, and then went back a block to a drug store at the corner of Broad and Boulevard. He had determined to walk, say, a mile and a half or a mile and three quarters, a part of the way to his home.

On the eastern unpaved side of the street in this section is the long fence inclosing the Fair Grounds, and there are very few buildings on the other, or western, side adjacent to the concrete. There was curbing on the west side of the concrete, but no sidewalk, and the place reserved for the sidewalk was much incumbered by debris, and was unfit for use by pedestrians. There were arc street lights 350 to 400 feet apart on the west side of the street. It had been raining, and the night was dark and misty.

The defendant denied any negligence, alleged the contributory negligence of the plaintiff as a bar to his action, relying upon the facts shown and upon the statute as it then was, paragraph 73 of section 2145 of the Code, as amended, Acts 1926, p. 789, c. 474, which reads:

"(h) Pedestrians shall not use the highways, other than the sidewalks thereof, for travel, except when obliged to do so by the absence of sidewalks reasonably suitable and passable for their use, in which case they shall keep as near as reasonably possible to the extreme left side or edge of same."

No one save the plaintiff and the defendant was at the scene at the precise moment of the occurrence. The plaintiff in his testimony thus describes it: " *, * * My idea of the State law was a pedestrian should walk on the side of the road facing traffic, and that being in my mind, I took the left hand side of the road and maybe possibly wasn't near the curb. It had been raining and there was some water and mud or something and I possibly was maybe two or three feet from the center of the concrete on the left side going north." And then this:

"Q. Of the paved part of the road?

"A. Of the paved part of the road.

"Q. Was the dirt and gravel part of the road toward the east in good condition or bad condition or what?

"A. Well, it was muddy I suspicioned because it had been raining and I didn't think of that side of the road. Mythought was that I was on the right side, taking the left hand side of the road so if anybody was coming to me I could see them and wouldn't run any risk and be under the lights which are on that side of the road.

"Q. Did you walk zig-zag, straight or how?

"A. Straight ahead. I don't say I was in the center—possibly nearer the center of the concrete than I was the curb on account of the mud and water that was nearest to the curb."

And later:

"Q. Have you traveled the road there from time to time before that?

"A. Oh, yes, sir.

"Q. You are familiar with that road?

"A. Yes, sir.

"Q. You say you were just walking along in the regular way?

"A. Walking along in the regular way, I should say about 150 feet, or 150 yards rather, south of what was the Virginia Carolina Rubber Company then, and all at once I was struck, and since then I have no memory.

*******

"Q. Which way were you facing when you were struck?

"A. North.

"Q. From what direction were you struck?

"A. Right side, on my right side.

"Q. While you were facing north?

"A. While I was facing north I was struck from behind.

"Q. But on your right side?

"A. On my right side.

"Q. Some object from behind?

"A. Yes."

It is shown by a photograph that his right leg had scars or marks upon it on the calf, about half way between the instep and the knee. He said that he could see all right; that he thought he was in a safe place; that he did not hear any warning that any vehicle was approaching from behind; that his hearing was good; and that after he was struck he was unconscious for two weeks. It is shown that he was irrational, confused and irresponsible when he regained consciousness for about a month, and completely incapacitated to resume his work for three and one-half months, and is still partially disabled.

Upon cross-examination as to the precise place of the occurrence, he testifies thus:

"Q. What portion of the concrete were you walking on at that time—how far from the center line?

"A. Possibly three or four feet, just a short distance in. Nearest the curb it was wet as my shoes indicate and I was traveling towards the center rather than towards the curb.

"Q. You were bearing toward the center?

"A. Yes, sir."

And again:

"Q. When you were hit your idea is that you were about two or three feet from the center line?

"A. Something like that or possibly three or four. It might have been a yard.

"Q. We will say from four feet to two. I don't care.

"A. It might have been right in the center. I might have been on the black line, as far as that is concerned.

"Q. You might have been on the line? You don't know where you were walking?

"A. On the west side right close to it. I was on my side.

"Q. That is a question we will come to later. You were on the west half of the concrete close to the center line, within four feet of it?

"A. On the west side of the concrete close to the center line.

"Q. That is where you were walking?

"A. The feet are not designated—close to the west side, the west side of the concrete close to the center line." He repeats that he was struck on the right side.

If this were true, he would necessarily have been thrown to or towards the left or west side, but the fact is that he was found on the extreme right or east edge of the concrete roadway.

It is upon this evidence that the plaintiff must recover, if at all.

When the plaintiff was about to rest his case, one of the attorneys for the defendant asked that the jury be excused so that a motion might be made in their absence; and thereupon this was said by one of the attorneys for the plaintiff: "Before we close our case, we want to make perfectly clear our position on one point so there can be no possible misunderstanding between us. We assume that the defendant will call Mr. Saunders to testify. Unless he is willing to assure us that he will do that, we propose to call him as an adverse witness because we do wish to cross-examine him in any event." After some further colloquy, the plaintiff called the adverse party, the defendant, as a witness to cross-examine him, a right accorded by statute, Code, § 6214.

This witness, the defendant, Saunders, describes his movements immediately prior to the accident, testifying that at the time he was traveling between 15 and 20 miles an hour, except at cross-streets; that he had no speedometer, but that it was necessary for him to drive carefully on account of the weather conditions which existed; that he was keeping a vigilant lookout and driving carefully; that it was misty but not raining— very cloudy and misty; that he could stopthe car in 15 feet; and that when he first saw Temple he was not over four feet from him. Then he says this:

"Q. Did you really see him before you struck him at all?

"A. I saw him as he stepped out in front of the car. It was instantaneous, the sight of Dr. Temple and my accident with him were almost simultaneous.

"Q. So that you really can't say you saw him at all before the accident?

"A. The only thing I can say that I saw him just as he appeared."

In answer to the question, "Where were you driving with reference to this paved part of the Boulevard?" he said: "I was about 2 feet from the right hand edge or eastern edge of the concrete part of the roadway." And...