W. B. Bassett & Co v. Wood

• Citation: 132 S.E. 700
• Case Date: April 22, 1926
• Court: Supreme Court of Virginia

132 S.E. 700

W. B. BASSETT & CO.
v.
WOOD.

Special Court of Appeals of Virginia.

April 22, 1926.

[132 S.E. 701]

Error to Circuit Court of City of Norfolk.

Action by Ed L. Wood, administrator, against W. B. Bassett and another, partners trading as W. B. Bassett & Co. Judgment for plaintiff, and defendant brings error. Affirmed.

Baird, White & Lanning, of Norfolk, for plaintiff in error.

E. A. Bilisoly and R. W. Shultice, both of Norfolk, for defendant in error.

CHRISTIAN, J. This is a writ of error to the circuit court of the city of Norfolk, Va., by W. B. Bassett and W. R. Bassett, partners trading as W. B. Bassett & Co., from a verdict and judgment, entered on November 26, 1924, for $10,000 against them, in a certain suit in said court wherein they were defendants, and Ed E. Wood, administrator of the estate of Susie C. W. Wood, was plaintiff, to recover damages for the death of the decedent caused by the wrongful act and negligence of W. R. Bassett by driving an automobile truck upon her on Granby street in the city of Norfolk.

Granby street at the point of the accident is 35 feet wide between curbs with a double line of street car tracks located in and about the center of the street—leaving a space of 9 feel 8 inches between the west rail of the tracks and the west curb of the street, and 10 feet 5 inches between the east rail of the tracks and the eastern curb. College Place, a street 23 feet wide between curbs, with a sidewalk of 6 feet 5 inches on the south side thereof, and a sidewalk 7 feet 6 inches on the north side, comes into Granby

[132 S.E. 702]

street at right angles, from the west, at and near the point of this accident. Opposite College Place on the eastern side of Granby street is Smith & Welton's Department Store, and pedestrians cross from College Place and the west side of Granby street at this point. About 00 feet further south Market street enters at right angles into Granby street on the east side thereof. On the northwest corner of College Place and Granby street, Truitt's Pharmacy fronts the latter street 26.14 feet, and adjoining it to the north is Newton's Florist.

On the 12th day of May, 1924, about 1 o'clock p. m., the decedent, who was on the west side of Granby street, looked north and saw no cars or traffic moving south on that side of the street which was used for southern traffic. She then started to cross to the eastern side of the street towards Smith & Welton's, and had reached a point just over the first car rail and within the north line of College Place when the accident happened. There was considerable traffic moving north on the east side of the street, and as she was standing still when first seen by the driver of the truck and others, she must have been waiting for that traffic to pass so that she might continue across. The plaintiff's witnesses thus locate her when she was struck, but the driver of the truck says she was "jaywalking, " and locates her about 25 or 28 feet further north in front of Truitt's Pharmacy, and other witnesses for defendant tend to corroborate his testimony as to her position. The defendant W. R. Bassett, who was driving the truck, testified that he came from Main street going home; that there was a line of traffic on the east side of Granby street consisting of five touring cars when he got into that line of traffic. There were two cars parked in front of Smith & Welton's, and the line of traffic turned out to pass these parked cars. When the line of traffic straightened out again, a car in the line of traffic stopped to park at Smith & Welton's. This stopped the car just in front of him, and seeing no traffic on the west side, he turned out to go around that ear. When he had gotten out of the line of the car in front of him, he saw Mrs. Wood facing him just 3 or 4 feet distant from the front of his truck. He blew his horn; put on his emergency brake. She screamed and took a step and a half backwards to escape the truck; but it was too late, and the radiator struck her, knocked her down, and fractured her skull. He says she was dragged only a few feet, while the plaintiff's witnesses say she was dragged to within 3 feet of the western curb, at the dividing line between Truitt's and Newton's about 20 feet. She was picked up, put into the truck, and Bassett drove her immediately to the hospital, where she died from the injuries thus inflicted. The plaintiff's witnesses fixed the speed of the truck at from 10 to 20 miles an hour, while the defendant said he was running between 7 to 8 miles an hour.

The defense of the defendant was based principally upon the contributory negligence of Mrs. Wood, and the main facts in the case were conflicting, so that the verdict of the jury conclusively establishes the negligence of the defendants, and that Mrs. Wood was free from contributory negligence, and the verdict and judgment must stand unless the court erred in its instructions to the jury.

Bassett in his testimony says he was far enough behind the car in front to pass it; that he looked and saw no traffic coming south; that the two cars that stopped wine on or about the east rail of the car tracks; that he could not see Mrs. Wood for those ears, and he says she was "jay-walking" and when struck was 20 feet north of the crossing. Bassett did not see Mrs. Wood until within 3 feet of her, nor did he give any warning of his approach until then. The defendant's statement must be taken as true so far as it established their case, and the variations in their evidence disregarded.

"As a general rule when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him. In such a situation he would be entitled to have the jury instructed upon his contention, or if there were a demurrer to the evidence, the facts would have to be regarded as established in accordance with the testimony most favorable to him. This is not true, however, as to the testimony which he gives himself. No litigant can successfully ask a court or jury to believe that lie has not told the truth. His statements of fact and the necessary inferences therefrom are binding upon him. He cannot be heard to ask that his case be made stronger than he makes it, where, as here, it depends upon facts within his own knowledge and as to which he has testified." Massie v. Firmsrbne, 114 S. E. 652, 656, 134 Va. 450-462; Davis Bakery v. Dozier, 124 S. E. 411-415, 139 Va. 628.

There is an ordinance of the city of Norfolk which forbids in this section persons crossing the streets, except at intersections with other streets, and shall pass over such...