Stephen Putney Shoe Co. Inc v. Ormsby's Adm'r.*

• Decision Date: 28 January 1921
• Citation: 105 S.E. 563
• Parties: STEPHEN PUTNEY SHOE CO., Inc. v. ORMSBY'S ADM'R.*
• Court: Virginia Supreme Court

105 S.E. 563

STEPHEN PUTNEY SHOE CO., Inc.

v.ORMSBY'S ADM'R.^*

Supreme Court of Appeals of Virginia.

Jan. 28, 1921.

Error to Law and Equity Court of City of Richmond.

Action by Ormsby's administrator against the Stephen Putney Shoe Company, Incorporated. To review judgment for plaintiff, defendant brings error. Reversed.

S. A. Anderson and A. G. Collins, both of Richmond, for plaintiff in error.

Geo. E. Haw, of Richmond, for defendant in error.

KELLY, P. S. M. Ormsby was struck and seriously injured by a Ford truck owned by Stephen Putney Shoe Company, Incorporated, and driven by Thomas Cooper a coloredman in the employment of that company. Ormsby died shortly afterwards. An action for damages followed, in which his administrator recovered against the company a verdict and judgment for $5,000.

The accident occurred in the city of Richmond, on the east side of Ninth street, a few feet north of the point where that street is intersected by the north line of the driveway leading east from the Capitol Square. The exit from the driveway, marked by two large posts on each side giving the appearance of an open gateway, is immediately opposite the eastern terminus of Grace street, and, except for the fact that the driveway is not so wide as Grace street, the physical situation is the same as if Grace street extended beyond Ninth into the Capitol Square. On each side of the driveway is a sidewalk leading to the sidewalk on the east side of Ninth street. The combined width of the sidewalks and driveway is practically equal to the width of Grace street from curb to curb. The situation will be better understood by reference to the accompanying sketch showing the intersection of the streets and the driveway in question.

Ormsby was coming out of the Capitol Square using the walk on the north side of the driveway and had reached the sidewalk on the east side of Ninth street about the time Cooper, driving the truck eastward on Grace, was approaching the intersection of Grace and Ninth. Ormsby was evidently intending to cross Ninth and go west on the north side of Grace. Cooper's route was across and up Ninth on the east side. Ormsby walked out of the Capitol Square, proceeded almost straight across the walk on Ninth, stepped from the curb into the street, and was struck by the right front fender of the truck. Cooper had made the crossing and turn in the manner required by the traffic ordinance, proceeding as far as he could straight across Ninth, making a full turn, and proceeding up Ninth as close to the right hand curb as practicable. There were no other vehicles or pedestrians on the street or sidewalks between Ormsby and Cooper, and each was in clear and easy view of the other from the time Ormsby came out of the Square on the sidewalk. The substance of Cooper's testimony is that he was not exceeding the lawful rate of speed either as hecame down Grace or as he turned and went up Ninth; that Ormsby stepped from the curb only about three or four feet ahead of the truck; that he tried to save him by swerving quickly to the left; and that Ormsby "came against the fender" and was knocked down in that way. Upon these facts, if they stood alone, there would clearly be no liability upon the defendant.

There was one other eyewitness, however, and only one, and upon his testimony the fate of the case depends. This witness was N. C. Redford. He was coming up the east side of Ninth in a buggy, intending to turn into Grace, and just before he got to the southern gate of the Capitol driveway, seeing the truck coming down Grace, he stopped his horse to let the truck pass. He estimated Cooper's speed at about 25 miles an hour, but admitted that he had never driven an automobile and did not know that he would be considered a judge on that question, although he thought he could say about how fast it was going. Without setting out his testimony on this point in full—for he had a good deal to say about the speed of the truck—it may be very fairly said to have been sufficient to show that the driver was materially exceeding the lawful limit, which was 15 miles an hour on straight runs, and 7 1/2 miles an hour at crossings and in making turns. The negligence of the defendant must therefore be considered as established.

Redford further testified, in part, as follows:

"Just as he (Cooper) turned the bend, I saw this gentleman (Ormsby) and I had seen him a second or so previous, coming through the walking gate above the driving gate. He got to the curbing about the time the truck got to the turn, and he stepped off the sidewalk. I did not see it hit him, but, I saw him fall and roll. The truck passed by him. * * * I don't know how far he had gotten off the sidewalk when he was struck, but when he fell he was three or four feet from the curbing; he was there when I picked him up. * * * The best of my recollection is that he came straight through the walking gate, and walked straight over the sidewalk. It was so quick that I don't think he had time to do any walking diagonally from the time I saw him come out of the gate...