Sawyer v. Blankenship

• Decision Date: 15 June 1933
• Court: Virginia Supreme Court
• Parties: EUGENE L. SAWYER v. MATTIE J. BLANKENSHIP.

Page 651

160 Va. 651

EUGENE L. SAWYER v. MATTIE J. BLANKENSHIP.

Supreme Court of Virginia, Wythebille.

June 15, 1933.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

1. APPEAL AND ERROR — Assignment of Error — Rule 22 of the Supreme Court of Appeals — Contributory Negligence of Plaintiff. — In the instant case defendant insisted that the evidence showed that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff contended that the record did not show that defendant assigned this as a ground for a motion to set aside the verdict. While, in strict conformity with the provisions of Rule 22, it would have been better had defendant stated that one of the grounds for the motion was that the evidence conclusively established that plaintiff was guilty of contributory negligence, it is clear from the record that this was one of the main grounds of defense to this action in the trial court. It is set out in the statement of defense, and it is shown in the examination and cross-examination of witnesses and in the objections to plaintiff's instructions.

Held: That in making the defense of contributory negligence in the Supreme Court of Appeals, no theory or question was urged which was not presented to the trial court.

2. STREETS AND HIGHWAYS — Automobile Accident — Attempt to Cross Street between Regular Crossings — Case at Bar. — The instant case was an action by plaintiff who was struck and injured by an automobile driven by an employee of defendant. Defendant claims that plaintiff was not attempting to cross the eastern section of the boulevard at a regular crossing. If this contention is established by the evidence, then the rights of defendant's driver to the use of the street were superior to those of plaintiff and the failure of plaintiff to see defendant's car in time to avoid the accident would probably convict her of negligence, which would bar her recovery.

3. STREETS AND HIGHWAYS — Intersection — Automobile Accident at Intersection — Whether Plaintiff Was Injured at an Intersection — Case at Bar. — In the instant case plaintiff while crossing a street was struck and injured by defendant's automobile. Plaintiff stated that she was proceeding across the street from curb to curb in a straight line and in the space usually used by pedestrians. In this she was corroborated by an eye witness. Defendant claimed that plaintiff was not attempting to cross the street at a regular crossing. If not within the exact lines bounding the crossing, the point of impact was so near thereto that in the absence of visible marks upon the surface of the boulevard indicating just where pedestrians should walk the jury had a right to conclude that plaintiff was crossing the street at an intersection within the terms of Code of 1930, section 2145(73), subdivision (e).

4. APPEAL AND ERROR — Weight of Jury's Verdict. — Where the evidence supported the finding of the jury, the Supreme Court of Appeals are bound by their verdict.

5. STREETS AND HIGHWAYS — Automobiles — Right of Way between Automobile and Pedestrian at Intersection — Continual Looking and Listening. — While a pedestrian in crossing streets at intersections has the right of way over motor vehicles, he must exercise such care for his own safety as a person of ordinary prudence would exercise under like circumstances. He cannot blindly or negligently expose himself to danger. But if the hypothetical ordinarily prudent person could from the circumstances reasonably believe that the crossing could be made in safety and that there was no car sufficiently near to put him on notice of approaching danger, he is not required to be continually looking and listening to see if automobiles are approaching, under penalty that upon failure to do so, if injured, his negligence must be conclusively presumed.

6. STREETS AND HIGHWAYS — Automobiles — Injury to Pedestrian at an Intersection — Contributory Negligence — Case at Bar. — In the instant case, an action by plaintiff for injuries received from an automobile at a street intersection, from the evidence both for plaintiff and defendant, it is apparent that plaintiff had left the curb and was out in the traffic lane before defendant's car was visible to her from behind a car standing in the intersection. This being true, she had the right to presume that automobiles would not dart out from behind that car at such rate of speed as to endanger her, hence she was not negligent as a matter of law in leaving the center section and stepping from the curb into the traffic lane.

7. STREETS AND HIGHWAYS — Automobiles — Duty of Driver Approaching an Intersection. — The duty of a motor vehicle driver on approaching an intersection is to keep a vigilant lookout for pedestrians between curbs on the traveled portion of the highway, and when pedestrians are negotiating the crossing or about to step from the side into traffic lanes, to operate his car at such speed and under such control that he can readily turn one way or the other, and, if necessary, bring his machine to a stop in time to avoid injury to pedestrians.

8. STREETS AND HIGHWAYS — Automobiles — Duty of Driver Approaching an Intersection — Car Standing in the Intersection Obstructing Driver's View. — In the instant case, an action by plaintiff for injuries received from an automobile at a street intersection, there was an additional reason for the driver to exercise caution in approaching the intersection. A car standing in the intersection not only blocked his course but obstructed his view of persons who might have been, as plaintiff was, between curbs or just stepping from the curb.

Held: That this fact increased the danger and required defendant's driver to exercise care commensurate therewith.

9. STREETS AND HIGHWAYS — Contributory Negligence of Pedestrian — Automobile Accident — Questions of Law and Fact — Case at Bar. — In the instant case plaintiff was struck at a street intersection by defendant's automobile which came from behind a car standing in the intersection obstructing the view of both plaintiff and the driver of the automobile.

Held: That under the facts and circumstances of the case, the question of whether or not plaintiff was guilty of contributory negligence was properly submitted to the jury.

Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

O. L. Shackleford and C. C. Sharp, for the plaintiff in error.

Rixey & Rixey and T. J. Amelson, for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

Mrs. Mattie J. Blankenship, an elderly woman, was struck and permanently injured by an automobile driven by an employee of Eugene L. Sawyer. Upon the trial to recover damages for these injuries, the jury returned a verdict of $2,050 in favor of plaintiff, which was approved by the trial court. Defendant sought and obtained this writ of error to review that judgment.

The only error assigned is to the action of the court in refusing to set aside the verdict upon the ground that it was contrary to the evidence and in refusing to enter judgment for defendant.

Defendant admits that the evidence was sufficient to warrant the jury in finding him guilty of negligence, but insists that it shows that plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff contends that the record does not show that defendant assigned this as a ground for his motion to set aside the verdict. Defendant's motion, as recorded, is in this language.

"And whereupon the said defendant by his attorney, moved the court to set aside the verdict of the jury upon the grounds that it is contrary to the evidence and without evidence to support it, and to enter final judgment for the defendant on the grounds that there is sufficient evidence before the court to enable it to decide the case upon its merits; and the further hearing of which motion is continued."

While, in strict conformity with the provisions of ...