Yellow Cab Corp. v. Henderson

• Decision Date: 10 September 1941
• Docket Number: Record No. 2396.
• Parties: THE YELLOW CAB CORPORATION OF ABINGDON, VIRGINIA v. PAULINE HENDERSON.
• Court: Virginia Supreme Court

Page 207

178 Va. 207

THE YELLOW CAB CORPORATION OF ABINGDON, VIRGINIA v. PAULINE HENDERSON.

Record No. 2396.

Supreme Court of Virginia, Staunton.

September 10, 1941.

Present, Campbell, C.J., and Holt, Gregory, Eggleston and Spratley, JJ.

1. NEGLIGENCE — Last Clear Chance — Doctrine Stated. — Whenever one sees another in a place of peril from which it appears that he cannot extricate himself or where it appears that he is unconscious of his danger, or whenever by the exercise of ordinary care the defendant should have been cognizant of the situation and has a clear chance to avoid an accident with safety to himself, he must take that chance.

2. NEGLIGENCE — Last Clear Chance — Antecedent Negligence of Plaintiff Not of Itself a Bar. — Under the doctrine of last clear chance, the antecedent negligence of a plaintiff does not of itself preclude his recovery.

3. NEGLIGENCE — Last Clear Chance — Reason for Doctrine. — The reason for the doctrine of last clear chance is that one cannot kill another merely because such other is negligent.

4. NEGLIGENCE — Last Clear Chance — Presupposes Negligence on Part of Both Parties. — The doctrine of the last clear chance presupposes that there has been negligence on the part of both the plaintiff and the defendant.

5. NEGLIGENCE — Last Clear Chance — Duty to Avoid Injuring One Who Is Negligent. — Though a person be guilty of negligence, this does not relieve another from avoiding injury to him if there is an opportunity for the other to avoid it up to the moment the hurt is occasioned.

6. NEGLIGENCE — Last Clear Chance — Distinguished from Concurring Negligence. — The doctrine of the last clear chance is distinguished from concurring negligence by the fact that in the last clear chance, one litigant discovers, or by the exercise of ordinary care should have discovered, the peril of the other litigant and, therefore, has the opportunity of avoiding the injury, but fails to do so. In such a situation, the negligence of the plaintiff may become the remote cause and that of the defendant the proximate cause.

7. NEGLIGENCE — Violation of Statute — Does Not Necessarily Establish Proximate Cause. — The mere violation of a statute does not necessarily establish the existence of proximate cause.

8. NEGLIGENCE — Duty to Keep Lookout — Test. — The test in a case where the defendant is required by law to keep a proper lookout is not whether he actually saw the plaintiff in time to have saved him, but whether he could have seen him in time to have avoided the injury, by exercising ordinary care, and failed to do so.

9. AUTOMOBILES — Duty in Regard to Lights and Vision — Duty to Increase Diligence When Vision Obscured. — One who drives faster than he should drive into a cloud of dust, in a snow storm, or in the face of blinding headlights, is required under such circumstances, in the exercise of ordinary care, to increase his diligence to avoid injury to anyone who may be on the highway in front of him.

10. AUTOMOBILES — Last Clear Chance — Striking Pedestrian — Evidence Making Question One for Jury — Case at Bar. — In the instant case, an action to recover for personal injuries sustained by plaintiff when she was struck by a taxicab while crossing a street, the evidence showed that the street, at the place of the accident, was brightly lighted, that the weather was fair and the pavement was dry, that the street was forty feet wide and that when plaintiff was struck, she was about seven feet from the curb toward which she was crossing. Plaintiff testified that she looked both ways before starting to cross the street and saw no car coming from either direction and that she did not, at any time, see the car which hit her. The driver of the taxicab testified that he was driving about twenty miles an hour, that immediately before he struck plaintiff he met another car with lights so bright that for a few seconds he could not see the street, and that he did not see plaintiff until he struck her. The driver's testimony as to the speed of the taxicab was contradicted, and he was not corroborated as to meeting any car with blinding lights except by the testimony of an intoxicated passenger in the taxicab. The jury returned a verdict in favor of plaintiff.

Held: That it was a question for the jury to determine, under the facts and the circumstances, whether the driver of the taxicab had a last clear chance to avoid the collision.

11. INSTRUCTIONS — Object — To Enlighten Jurors — Multiplication to Be Avoided. — The object of instructions is to enlighten the minds of the jurors on the law of the particular case, and when that object has been fully accomplished, the multiplication of instructions tends to confuse the jury and is a practice to be avoided.

12. JURY — Objections — After Verdict — Too Late Except on Ground of Prejudice. — It is too late after a verdict to object to the competency of a juror except upon the ground of prejudice.

13. JURY — Objections — After Verdict — Code Section 6002 — Sole Fact of Irregularity or Mere Suspicion of Prejudice Insufficient. — Under section 6002 of the Code of 1936, providing that no irregularity in the drawing or impanelling of jurors shall be sufficient to set aside a verdict unless the party making the objection was injured by the irregularity, neither the sole fact of irregularity nor the mere suspicion of prejudice based upon the irregularity is sufficient. Some injury must be shown to result from the irregularity.

14. JURY — Qualifications — Same Rules Applicable in Criminal and Civil Cases. — The rules applicable to the qualification of a juror in a criminal case are the same as those applying in a civil case.

15. JURY — Objections — After Verdict — Overruling Objection Based on Ground of Relationship — Case at Bar. — In the instant case, an action to recover for injuries sustained by plaintiff when struck by a taxicab while crossing a street, after a verdict in plaintiff's favor had been returned, defendant discovered that one of the jurors was the nephew of the great-grandmother of the plaintiff's husband, and the fact of the relationship by affinity was made a ground for a new trial. Except for the relationship, no prejudice was alleged. When the prospective jurors were asked upon their voir dire if they were related by blood or marriage to either of the parties, none of them responded in the affirmative. An affidavit by the juror in question, which was not contradicted, stated that he did not know plaintiff or her husband, nor of any relationship to them, when he was examined on his voir dire. Plaintiff's husband also filed an affidavit in which he stated that he had never seen the juror before the trial and did not know that they were related.

Held: That the trial court, in the exercise of sound discretion, did not err in overruling the motion for a new trial based upon the ground of the juror's incompetency, as the juror's affidavit positively negatived any favor toward plaintiff or any prejudice against defendant, and showed the juror to have been unmindful of any relationship to plaintiff or her husband.

Error to a judgment of the Circuit Court of Washington county. Hon. Walter H. Robertson, judge presiding.

The opinion states the case.

T. L. Hutton, George M. Warren and H. E. Widener, for the plaintiff in error.

William A. Stuart and Fred C. Parks, for the defendant in error.

SPRATLEY, J., delivered the opinion of the court.

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...