South Hill Motor Co. v. Gordon

• Decision Date: 09 January 1939
• Docket Number: Record No. 1998.
• Citation: 172 Va. 193
• Parties: SOUTH HILL MOTOR COMPANY, INC., AND J. V. JONES v. CHALMERS M. GORDON, JR.
• Court: Virginia Supreme Court

Page 193

172 Va. 193

SOUTH HILL MOTOR COMPANY, INC., AND J. V. JONES v. CHALMERS M. GORDON, JR.

Record No. 1998.

Supreme Court of Virginia, Richmond.

January 9, 1939.

Present, Campbell, C.J., and Holt, Gregory, Eggleston and Spratley, JJ.

1. AUTOMOBILES — Pedestrians — Pedestrians to Keep to the Left and Motor Vehicles to the Right. — Under normal conditions a pedestrian must keep as near as reasonably possible to the extreme left side or edge of the highway, and the operator of a motor vehicle must drive upon his right half of the highway.

2. AUTOMOBILES — Pedestrians — Duties Where Both Must Use Same Portion of Highway at Same Time. — When it happens that both the driver of an automobile and a pedestrian desire, or are required, to use, at the same time, that portion of the highway prescribed for their use, each of them must exercise his respective right to the use with due regard for the right of the other.

3. AUTOMOBILES — Pedestrians — Right of Way. — Neither a pedestrian nor the operator of a vehicle, in traveling along the portion of the highway prescribed for the use of each of them, has a "right of way" thereon over the other, except as expressly provided by statute.

4. AUTOMOBILES — Right to Use of Highway — Not a Right of Way. — The mere right to travel on a specified portion of a highway is not to be confused with a "right of way" thereon superior to the rights of others also entitled to use the highway. The right to the use is an equal and co-ordinate right.

5. AUTOMOBILES — Pedestrians — Respective Duties of Pedestrian and Automobile Driver. — Both pedestrians and operators of vehicles are held to the exercise of ordinary care and are bound to respect the rights of each other, and when either observes danger to or from the other, he must exercise ordinary and reasonable care to avoid the danger. The duty of each to avoid giving or receiving injury is reciprocal.

6. AUTOMOBILES — Pedestrians — May Not Carelessly Enter or Cross Intersections. — Not even at a street crossing, or intersection, where the pedestrian has a right of way, does he have the right carelessly to enter or cross the intersection regardless of approaching traffic.

7. EVIDENCE — Inconsistent Positions — Plaintiff Bound by Own Testimony. — A plaintiff can make no stronger case than is shown by his own testimony, and he is bound by his account of what he saw and did.

8. AUTOMOBILES — Striking Pedestrian — Contributory Negligence — Case at Bar. — In the instant case, an action by a pedestrian to recover for injuries received when struck by an automobile, plaintiff admitted that he saw the automobile four hundred yards in front of him as it rounded a curve; that he continued to look at it, and never took his eyes off it until it struck him; that when the automobile was some ten or fifteen steps from him, he pulled the brim of his hat down to shade his eyes from the lights, and although he could have saved himself by taking not more than two steps to his left, he made no move to save himself. Plaintiff knew that the oncoming car was meeting other cars in the vicinity with lights burning, and occupying the opposite half of the road.

Held: That plaintiff's own evidence disclosed that he was guilty of contributory negligence as an efficient and proximate cause of the accident.

9. NEGLIGENCE — Contributory Negligence — Wilful or Careless Failure to Take Steps for Own Safety. — Where one is under the duty to exercise reasonable care for the safety of himself and others, the wilful or careless failure to take any available step whatever for his own safety when danger is apparent, and can be avoided, constitutes negligence.

10. NEGLIGENCE — Last Clear Chance — Where Negligence of Both Parties Continues to Moment of Accident. — Even if a defendant be guilty of negligence, this does not relieve a plaintiff from avoiding injury if there is an opportunity for him to avoid it up to the moment of the accident. The doctrine of the last clear chance applies to a plaintiff as well as to a defendant, when the negligence of both continues to the moment of the accident, and contributes to the injury, unless there are some peculiar circumstances to take it out of the rule.

11. AUTOMOBILES — Striking Pedestrian — Last Clear Chance — Case at Bar. — In the instant case, an action by a pedestrian to recover for injuries received when struck by an automobile, plaintiff admitted that he saw the automobile four hundred yards in front of him as it rounded a curve; that he continued to look at it, and never took his eyes off it until it struck him; that when the automobile was some ten or fifteen steps from him, he pulled the brim of his hat down to shade his eyes from the lights, and although he could have saved himself by taking not more than two steps to his left, he made no move to save himself. There was nothing in the evidence to show that the automobile driver knew that plaintiff would not protect himself, or that defendant saw plaintiff in time to avoid striking him.

Held: That in order to apply the doctrine of the last clear chance, the burden was upon plaintiff to show affirmatively by a preponderance of the evidence that defendant might have avoided the collision by the use of ordinary care after he discovered, or should have discovered, plaintiff's peril.

12. APPEAL AND ERROR — Reversal — Virdict and Judgment Not Supported by Evidence. — While the Supreme Court of Appeals recognizes the weight which should be given to a jury's verdict, confirmed by a judgment of the trial court, it will not hesitate to reverse such judgments when they are not supported by the evidence.

13. APPEAL AND ERROR — Reversal — Entry of Final Judgment. — Where it appears that all the facts were fully developed upon the trial, and there should have been a final judgment for defendants, such final judgment will be entered by the Supreme Court of Appeals.

Error to a judgment of the Circuit Court of Mecklenburg county. Hon. N. S. Turnbull, Jr., judge presiding.

The opinion states the case.

Parrish, Butcher & Parrish and Edward P. Simpkins, Jr., for the plaintiffs in error.

Irby Turnbull, for the defendant in error.

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

This case presents for our review a judgment in favor of a pedestrian, who was struck and injured by an automobile on a public highway.

Chalmers M. Gordon, Jr., was the plaintiff in the court below, and J. V. Jones, the operator of the automobile, and the South Hill Motor Company, Inc., his employer, were the defendants. The parties will be hereinafter referred to according to the positions they occupied in the trial court.

The action was instituted by the filing of a declaration of trespass on the case. The defendants filed their plea of the general issue, grounds of defense, and a statement of their intention to rely upon the contributory negligence of the plaintiff.

Both at the conclusion of the plaintiff's evidence, and at the conclusion of all of the evidence, the defendants moved the court to strike out all the evidence on the ground that the plaintiff was guilty of contributory negligence. The trial court overruled the motion, and after a verdict was returned in favor of the plaintiff, refused to set aside the verdict.

The accident occurred sometime between six and seven o'clock p.m., on January 6, 1937, on U.S. highway No. 1, at a point within, or near, the southerly boundary of the town of South Hill, in Mecklenburg county. This highway is a main heavily traveled thoroughfare from the north to the south, and passes through the town of South Hill. On leaving South Hill going southwardly, there is a moderate left-hand curve in the highway, beginning at a point about opposite a service station owned and operated by a man hamed Willis. This service station is on the western side, or right-hand side of the highway proceeding southwardly. On the east side, almost directly opposite, is a service station and garage owned by a man named Pearson, and operated under the management of C. A. Pulley. Proceeding further from these two service stations around this left-hand curve, one next reaches property on the right-hand side used by the State Highway Department. The curve terminates opposite this latter property, and continues southwardly in a straight line on a slight down grade, the exact degree of which is not shown in the record. About three hundred yards or more distant southerly from the end of the curve, on the straight road, and next to the Highway Department's property, is a service station of Bud Mitchell, also on the western side of the road. There is a twelve-foot "good surface" driveway extending from this latter station to the highway covering between forty-five and fifty feet in distance. Still going southwardly a distance estimated from three hundred to five hundred yards, one next comes to a service station and tourist camp operated by Carter Gill, also on the western side of the highway. The highway in the vicinity of the scene of the accident is eighteen feet wide, with a six-foot dirt shoulder on each side.

The plaintiff spent the major portion of the above day hunting, having started out about 9:00 a.m., and quitting when darkness came. He then went out to the highway, and secured a ride on a bread truck for himself and dog to the town of South Hill. Upon his arrival there, he states he purchased from a "liquor store" a pint of whiskey, from which he admits he subsequently took two drinks before the accident.

He then went to Pearson's service station. Here he met one, B. L. Matthews, and he admits that the two of them went to a shed back of the station, where they took a drink. Matthews states that they took several drinks from a quart bottle, or a bottle containing a fifth of a gallon. They went back into that station, where Gordon purchased and drank a bottle of beer, remaining there about fifteen minutes. Matthews invited Gordon to go home and spend the night with...