Yellow Cab Corp. Of Abingdon v. Henderson

• Decision Date: 10 September 1941
• Citation: 16 S.E.2d 389
• Court: Virginia Supreme Court
• Parties: YELLOW CAB CORPORATION OF ABINGDON. v. HENDERSON.

16 S.E.2d 389

YELLOW CAB CORPORATION OF ABINGDON.

v.HENDERSON.

Supreme Court of Appeals of Virginia.

Sept. 10, 1941.

[COPYRIGHT MATERIAL OMITTED.]

Error to Circuit Court, Washington County; Walter H. Robertson, Judge.

Action commenced by notice of motion for judgment by Pauline Henderson against the Yellow Cab Corporation of Abingdon, Virginia, for personal injuries sustained by plaintiff when struck by defendant's taxicab. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, EGGLESTON, and SPRATLEY, JJ.

T. L. Hutton, of Abingdon, and George M. Warren and H. E. Widener, both of Bristol, for plaintiff in error.

William A. Stuart and Fred C. Parks, both of Abingdon, for defendant in error.

SPRATLEY, Justice.

Pauline Henderson instituted this action by notice of motion against the Yellow Cab Corporation of Abingdon, Virginia, to recover for personal injuries she sustained by reason of being struck by a taxicab owned by that corporation and driven by its employee, Jerry Price. The jury returned a verdict in favor of Mrs. Henderson in the sum of $15,000, and the trial court entered final judgment thereon. The parties will sometimes be referred to herein as they appeared in the trial court.

The defendant seeks to have the judgment reversed on the grounds that the trial court erred in refusing to strike the evidence of the plaintiff; in granting instructions under the doctrine of the last clear chance; in refusing instructions; and in refusing to set aside the verdict of the jury as contrary to the law and the evidence.

The evidence in the case is in little conflict as to material matters except as to the speed of the defendant's car and the presence of an approaching automobile, at the scene of the accident, with lights so bright as to prevent the driver of the taxicab from seeing the peril of the plaintiff. Stated in the light most favorable to the plaintiff, in view of the jury's verdict, it is as follows:

The accident occurred about 9:30 on Saturday night, October 7, 1939, on Main street, in the town of Abingdon, Virginia. Main street is a paved highway, a main artery of traffic constituting a part of the Lee Highway, and is forty feet wide from curb to curb. It runs east and west and is straight and level for a considerable distance in both directions.

On the night in question, Mrs. Henderson left her residence on the south side of the street for the purpose of going to the gasoline service station of the Virginia Motor Company, located across the street, a short distance west of her home. She intended to go to the front door of the station to telephone her husband who was operating a restaurant in the west end of the town. This door of the station is located behind some gasoline pumps, and to reach it she had to go around the western end of the pumps. She was proceeding diagonally across the street and had reached a point seven feet from the north curb line when she was struck by the taxicab.

The section of the street where she crossed was brightly lighted. One street light was one hundred and eleven feet east of the point where she was struck and one was two hundred and fourteen feet west. The place of the impact was immediately in front of a canopy of the Virginia Motor Company. The illumination at that point, in addition to the lights of the taxicab itself, consisted of light furnished by a neon tubing around the canopy, a Dodge sign over the center of the canopy, and two two-hundred-watt light bulbs. The weather was fair, and the pavement was dry.

There were no automobiles parked on the street in the vicinity of the accident. The speed limit of the traffic laws of the town of Abingdon, in force at the time and place of the accident, was twenty-five miles per hour.

The Virginia Motor Company has a paved driveway from the street in front of its service station for a distance of onehundred and ten feet along the north curb line. The curbing has been removed for that distance.

The plaintiff testified that when she left her home, she went west along the sidewalk on the south side of Main street to a corner where there was an alley-way running to the south; that no car passed either towards the east or west immediately before she started across the street; that she looked to her right and to her left before leaving the sidewalk and saw no car coming from either direction; that as she walked across the street, "there wasn't anything coming from the west"; that she did not remember whether she looked continually for vehicles after she got into the street; that she did not, at any time, see the car which hit her; and that she was in no hurry to cross the street and was proceeding at "just a regular walk."

In explanation of her failure to see the taxicab when she looked east, at the time of crossing the street, she said: "Well, he was coming so far up the street that I didn't see it, I guess."

At the scene of the accident there is a clear, unobstructed view east for about one thousand feet and a view west from three to four hundred feet. With the illumination existing at the time of the accident, a pedestrian, at the place of the collision, could be seen for a distance of "at least one hundred steps."

E. R. Craig, the owner of the Virginia Motor Company, testified that as he was about to check his oil pumps and close his business for the night, he saw the plaintiff walking across the street at an angle and, at the same time, out of the corner of his eye, saw the taxicab coming down the street. Mrs. Henderson was walking in a natural position at a moderate gait towards the northwest. She had passed the center of the street and was about ten feet from the northern curb line. She was looking in the direction she was walking. The taxicab was then within twenty feet of her. He said, "I did see that Mrs. Henderson was going to be struck" and "I didn't have time to give any warning." He estimated the speed of the cab at from thirty-five to forty-five miles per hour, perhaps, closer to forty miles. He thought she would have gotten clear of the car had she been able to take three to four more steps towards the north. He could not positively state whether another automo bile passed along the street from the west about that time.

The plaintiff was struck by the right front of the taxicab with such force that her body "went through the air before it struck the pavement, " and then rolled on the pavement for several times before coming to rest at a point sixty feet from the point of impact. The brakes of the taxicab were not applied until after the accident. The cab ran fifty-three feet after the collision.

Mrs. Henderson was gravely and permanently injured. She suffered multiple fractures of the pelvis, multiple comminuted fractures of the right leg, comminuted fractures of the left leg, and numerous other injuries. She remained unconscious for two weeks. One of the medical witnesses said she was torn all to pieces and he did not see "how anyone could live through it." The nature and extent of her injuries are such that it is not contended that the amount of the judgment is excessive.

The cab's right fender, the right side of the hood, and the radiator grill were bent and the right headlight broken.

The noise of the impact was so great that a witness, who was close by but did not see the accident, stated, regarding the noise of the crash, "My first thought was, there was two cars ran together." He immediately turned in the direction of the street, and he saw no other car passing in either direction.

Jerry Price, the driver of the cab, said that he had taken up a passenger, Ray Marshall, at the cab station on Main street, in the eastern end of Abingdon. He then drove to Main street, turned left thereon and started west. He stated that as he was driving about twenty miles an hour, he met a car next to the Virginia Motor Company, approaching from the west on its side of the road; that he did not know the speed of this car, but its lights were the brightest he had ever seen; that his own lights were dimmed; and that he could not see the street for a few seconds.

According to his evidence, the other car passed him at or immediately before the moment he struck the plaintiff. Said he, "Just as I got to the car, just at the time, a woman ran right out in front of me, just happened all at once. I don't know where she come from." Later he said, "I can't say she was running, " and "just seen aglimpse as I hit her." He admitted that if she had passed in front of the oncoming car, he could have seen her by its headlights.

For the purpose of attacking his veracity, it was testified that he told the chief of police of Abingdon immediately after the accident that he did not see Mrs. Henderson until he struck her and she was rolling off the side of his car. In effect, he admitted that he did not know where she came from, and that he did not see her before the collision. He said he was frightened because of the collision, and while he took his foot off the accelerator when the lights blinded him, he did not apply the brakes nor sound his horn.

The passenger in the taxicab undertook to corroborate the testimony of the driver as to meeting a car with bright lights. He said he did not see Mrs. Henderson until after she had been hit; that Price was making twenty or twenty-five miles an hour he "reckoned"; and that the car they met was running at about the same speed.

Credible witnesses testified that the passenger was so drunk and intoxicated that he was incapable of knowing what had happened. He remained quietly inside the cab for an hour after the accident before going home.

The defendant contends that the plaintiff was guilty of such contributory and concurring negligence as bars her right of recovery. It further contends that the driver of its vehicle was so blinded by the lights of an approaching automobile that he was unable, in the exercise of reasonable care, to observe...