White v. Doe
| Citation | 148 S.E.2d 797,207 Va. 276 |
| Court | Virginia Supreme Court |
| Decision Date | 13 June 1966 |
| Parties | Joseph M. WHITE v. John DOE. |
Willard J. Moody, Richard D. Mattox, Portsmouth (Moody, Mattox, Young & West, Portsmouth, on brief), for plaintiff in error.
Allen S. Reynolds, Norfolk (White, Ryan & Reynolds, Norfolk, on brief), for defendant in error.
Before EGGLESTON, C.J., and SPRATLEY, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
Joseph M. White, the plaintiff, filed a motion for judgment against John Doe, an unknown uninsured motorist, the defendant. The motion sought the recovery of damages for personal injuries sustained by the plaintiff, a member of the Portsmouth police department, when his motorcycle crashed during a chase to apprehend the defendant. The motion alleged that the accident occurred as the result of the negligence of the defendant.
The plaintiff carried an automobile liability insurance policy with State Farm Mutual Automobile Insurance Company containing a provision protecting the plaintiff against damages for injuries suffered at the hands of an uninsured motorist. Process, together with a copy of the motion for judgment, was served upon State Farm. State Farm answered in its own name and on behalf of the defendant, denying liability for the plaintiff's claim.
A jury trial resulted in a verdict in favor of the plaintiff in the sum of $6,250.00. Upon motion of the defendant, the trial court set aside the verdict and entered summary judgment in favor of the defendant, holding that the plaintiff was guilty of contributory negligence as a matter of law and thus barred from recovery. From the final order of the court embodying its rulings, the plaintiff was granted this writ of error.
The evidence shows that at approximately 7:30 p.m. on April 24, 1963, the plaintiff was patrolling on his motorcycle in the Port Norfolk area of the city of Portsmouth. He was proceeding westwardly on Hartford Street when, ahead of him, he observed an automobile enter Hartford Street from Florida Avenue at a fast rate of speed and proceed in a westerly direction.
The plaintiff pursued the speeding vehicle for approximately four blocks before he was able to secure a check of its speed. When he was 50 to 60 feet behind the vehicle, he determined that it was going 44 or 45 miles per hour in a 25 mile per hour zone.
The plaintiff turned on the red blinking lights with which his motorcycle was equipped and attempted to stop the driver of the automobile. When the two vehicles reached Willett Drive, which intersected Hartford Street in the form of a 'T' from the south, the plaintiff 'moved over into the left-hand lane to pull up beside him, and * * * got up beside his rear wheel.' The driver of the automobile then 'abruptly put on the brakes and made a turn into Willett Drive.'
The plaintiff applied his brakes and turned his motorcycle sharply to the left, thus avoiding a collision with the automobile. The motorcycle went out of control, however, and the plaintiff was thrown over its handlebars to the ground, causing the injuries which formed the basis of the present action.
The driver of the automobile did not stop and the plaintiff was unable to identify him or to secure the license number of his vehicle. It was not shown whether the defendant was aware that the plaintiff was attempting to apprehend him or whether the defendant was even aware of the plaintiff's presence at the left side of his automobile.
The trial court held that the plaintiff was guilty of contributory negligence, as a matter of law, because he violated Code, § 46.1--190(e). That Code section, insofar as is pertinent here, provides that 'A person shall be guilty of reckless driving who shall * * * (o)vertake or pass any other vehicle proceeding in the same direction * * * at any intersection of highways * * *.'
The plaintiff first contends that the evidence did not show, as a matter of law, that he was overtaking or passing another vehicle at an intersection.
With this contention we cannot agree. The plaintiff's own testimony showed that he 'got up beside (the defendant's) rear wheel' at the intersection immediately before the accident occurred. The plaintiff is bound by that testimony and his case can rise no higher than his own statement permits. Massie v. Firmstone, 134 Va. 450 462, 114 S.E. 652. His testimony showed, as a matter of law, that he was overtaking the defendant's vehicle at the intersection.
The plaintiff also contends that since he was a police officer attempting to apprehend a law violator, much like a volunteer attempting to rescue a person in danger, he was not charged with the same degree of care as is required of the ordinary person; that he owed no duty to the defendant because the statute prohibiting overtaking or passing at an intersection was not designed to protect a law violator or to prevent a police officer from attempting to apprehend such a violator, and that he was thus not negligent in overtaking the defendant's vehicle at the intersection, as proscribed by Code, § 46.1--190(e).
These contentions of the plaintiff are all answered by the statutes of this Commonwealth and the prior decisions of this court.
Code, § 46.1--168, a part of Chapter 4 of the Motor Vehicle Code which also includes Code, § 46.1--190(e), provides that 'The...
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