Sprinkle v. Davis

• Citation: 111 F.2d 925,128 ALR 1101
• Decision Date: 04 May 1940
• Docket Number: No. 4609.,4609.
• Parties: SPRINKLE v. DAVIS.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

128 ALR 1101, 111 F.2d 925 (1940)

SPRINKLE v. DAVIS.

No. 4609.

Circuit Court of Appeals, Fourth Circuit.

May 4, 1940.

COPYRIGHT MATERIAL OMITTED

M. F. Trader, of Lynchburg, Va., and S. S. Lambeth, Jr., of Bedford, Va., for appellant.

Philip H. Hickson, of Lynchburg, Va. (Lowry and Radford, of Bedford, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

In our decision upon the former appeal in this case, 104 F.2d 487, we discussed in the main two questions, that is, whether the evidence of contributory negligence on the part of the plaintiff was so compelling as to require a directed verdict in favor of the defendant, and whether it was error on the part of the court not to instruct the jury that under the Virginia statute a pedestrian who crosses a public highway diagonally is guilty of negligence. Code 1936, § 2154 (126) (d). We decided that the question of contributory negligence was properly submitted to the jury, but reversed the judgment on the second point and remanded the case for a new trial. At this trial the jury also found for the plaintiff and assessed the damages at $8,000.

The accident, as appears from the former opinion, occurred when the plaintiff, a workman in the employ of the State Highway Department of Virginia, was struck by a passing automobile as he attempted upon the conclusion of his day's work to cross to the south side of a public road from two State trucks that had been used by him and a number of other workmen during the day and were then parked on the north shoulder of the road. The defendant on this appeal again contends for a directed verdict on the ground that there was no evidence of negligence on his part, and that in any event, there was clear proof of negligence on the part of the plaintiff. In effect this is the same argument that was advanced on the first appeal, and as the changes in the evidence do not materially affect the questions involved, a like decision thereon must be rendered. An inference of excessive speed on the part of the defendant may be drawn from the testimony, because he was coming from the cast as he approached the trucks and the workmen standing beside them, and the plaintiff, before venturing upon the road, said he looked eastwardly to his left a clear distance of approximately five hundred feet, and saw no car approaching, but was hit before he reached the south side of the road, crossing in a diagonal direction. Again, although the diagonal crossing was some evidence of neglect on his part, there is sufficient doubt whether this action contributed to the accident to make the questions of contributory negligence and of last clear chance ones for the decision of the jury.

In this connection a contention that the judge erroneously refused to grant an instruction on concurrent negligence should be considered. The defendant requested an instruction that it was the duty of both parties to use reasonable care to keep a lookout upon the highway so as to avoid a collision, and that if the jury should believe from the evidence that both of them were, or in the exercise of reasonable care should have been in plain view of each other, and had equal opportunity to prevent the accident, they were guilty of concurring negligence and the plaintiff could not recover. This request was properly refused, because it is admitted that the plaintiff did not see the car until it was too late, and the instruction contained a qualification upon the doctrine of the last clear chance which is not in accord with the Virginia decisions. The instruction prayed for would have told the jury that the plaintiff could not recover if, by the exercise of due care, he could have seen the approaching car and could have avoided the accident, even though the defendant was aware of the plaintiff's danger and had a clear opportunity to avoid the accident but failed to do so. This is not the rule in Virginia which is set out in Norfolk Southern R. Co. v. Crocker, 117 Va. 327, 331, 332, 84 S.E. 681, 683, where the court defined the doctrine of the last clear chance and quoted from Southern Ry. Co. v. Bailey, 110 Va. 833, 67 S.E. 365, 27 L.R.A.,N.S., 379. The court said:

"* * * The rule in question, which has frequently been applied to cases in which the plaintiff's negligence has continued to the very moment of the injury, is a qualification of the general rule that contributory negligence bars a recovery, and the principle is that, although the plaintiff has been negligent in exposing himself to peril, and although his negligence may have continued until the accident happened, he may nevertheless recover if the defendant, after knowing of his danger and having reason to suppose that he may not save himself, could have avoided the injury by the exercise of ordinary care, and failed to do so. This principle has been adopted by practically all the courts of last resort, both in England and in this country, and has been repeatedly indorsed by this court * * *.

"The distinction between a typical case of `concurring negligence' and one of `last clear chance' is pointed out by Judge Keith, after a full discussion of the authorities, in Southern Ry. Co. v. Bailey, 110 Va. 833, 67 S.E. 365, 27 L.R.A.,N.S., 379, as follows: `If it be the duty of a person upon the track of a railway to keep a constant lookout for approaching trains (and of this there can be no question), and if it be the duty of the servants of the company in control of the train to exercise reasonable care to discover the presence of a person upon the track, and if in the exercise of such reasonable care the presence of such person would be discovered, and the person on the track is injured and there be no other fact proved, then it is apparent that the case stated would be one of mutual and concurring negligence, and there can be no recovery. The duty was equal, and each is equally guilty of its breach. If, however, it appears that those in control of a train, in the discharge of their admitted duty to keep a reasonable outlook, discover, or should have discovered, a person upon the track, and there be superadded any fact or circumstance, brought home to their knowledge, sufficient to put a reasonable man upon his guard, that the person upon the track pays no heed to his danger and will take no step to secure his own safety, then the situation changes and the negligence of the person injured becomes the remote cause or mere condition of the accident, and the negligence of the railroad company the proximate cause, and there may be a recovery.'" Norfolk So. R. Co. v. Crocker, 117 Va. 327, 331, 332, 84 S.E. 681, 683, 684.

The charge of the District Court was in accord with this view. The jury were told in substance that if they believed that the plaintiff was negligent in the manner in which he entered the highway, or crossed it, still if they believed that after his peril had become apparent to the defendant, or by the exercise of ordinary care, should have become so apparent, the defendant in the exercise of reasonable care had a clear chance to avoid injuring the plaintiff and failed to do so, then the defendant would be still liable. The judge also charged the jury that even though the defendant was negligent in the operation of the automobile, yet if the plaintiff discovered before he was struck that he was in danger, and if he had a clear chance to avoid the injury by exercising ordinary care, such as stepping out of the way of the automobile and returning to the side of the road from which he had started, and failed to exercise this opportunity, then he would be guilty of contributory negligence and could not recover. These instructions were as favorable to the defendant as the law of Virginia permits. See Virginia Ry. & P. Co. v. Wellons, 133 Va. 350, 112 S.E. 843; Perkinson v. Persons, 164 Va. 172, 176, 178 S.E. 682; Bennett v. Spencer, 167 Va. 268, 189 S.E. 169; Gregory v. Daniel, 173 Va. 442, 4 S.E.2d 786; Green v. Ruffin, 141 Va. 628, 125 S.E. 742, 127 S.E. 486; South Hill Motor Co. v. Gordon, 172 Va. 193, 200 S.E. 637.

While the rulings on substantial points in the case were correct, there are complaints as to the treatment of counsel for the defendant by the judge in a number of instances which we are obliged now to consider. Perhaps the most important witness for the plaintiff was Albert J. Akers, foreman of the State Highway gang, of which the plaintiff was a member. Akers testified that the plaintiff descended from one of the trucks on the side away from the highway, and went behind the truck in order to cross to the south side of the road. Akers said that he himself had alighted from the truck and was standing near the cab on the shoulder of the road and did not see the plaintiff start across the road, but hearing the noise of a car approaching from the east at a speed as fast as it could make, he called out and ran to the edge of the road and saw that the plaintiff had reached a point a little past the center of the road, a couple of paces from the south side of the road, and that a moment thereafter the defendant's car struck him.

Under cross examination Akers' testimony at the first trial of the case was brought to his attention and it was shown to be different in certain particulars. At the first trial he said that the plaintiff crossed the road in a diagonal direction, so that coming from behind the truck he had reached a point opposite the radiator of the truck when he was struck. The defendant relied on this diagonal crossing at the first trial in order to show that the plaintiff was negligent, in view of the Virginia statute discussed in our former opinion. At the second trial Akers testified that the plaintiff went across the road at a very slight angle and was struck when he was opposite a point three feet from the rear of the truck.

It was also brought out that at...