165 Va. 306 | Va. | 1935
delivered the opinion of the court.
This action by notice of motion was brought by W. L. Trimble to recover damages from I. H. Samples and Ernest Samples for a personal injury received by him as a result of being struck by the automobile of I. H. Samples, which was being driven by his agent, Ernest Samples. The jury found a verdict in favor of the plaintiff in the sum of $2,000. The plaintiff was severely injured—suffering the loss of a leg—and no contention is made that the verdict is excessive.
The first and most important assignment of error challenges the action of the trial court in refusing to set aside the verdict as contrary to the law and the evidence.
The following narration states the case of the plaintiff as established by the verdict of the jury and confirmed by the trial court: The accident occurred on the highway which leads from Monterey in Highland county to Warm Springs in Bath county. The plaintiff, sixty-six years of
“After we checked up the measurements, Samples was with me following around and I said to him, T would like to know how the accident happened. It is an important thing and we want to get the facts, if you are willing to do it.’ He said that he would be glad to do anything he could. I said, ‘You saw these men in the road when you came around the turn’ and he said that he did but thought they would get out of the way—they were walking along the road and one of them looked like he was looking for something in the road and when he came close to the turn he was driving thirty or thirty-five miles an hour and he could see the three men in the road standing there. I said, ‘Why didn’t you slow up’ and he said T thought the men would hear me coming and get out of the way.’ The road was wide enough for all parties to have part of it and I asked him ‘Did you sound your horn’ and he said T did not; I thought that they would hear me coming and get out of the road but they did not.’ I asked him where he applied his brakes and he said ‘Right along here’ and he showed me where he had done that.”
That the plaintiff was in a state of panic when he responded to the warning to “look out” is clearly evinced
It is well recognized that such a condition as sudden fright may exist.
In Blashfield Enc. of Auto. Law, (Perm. Ed.), vol. 2, section 1248, it is said: “Fright at the suddenly discovered approach of an automobile immediately near is something so natural and usual that one driving a vehicle should anticipate it and govern himself accordingly, where the circumstances indicate that one in the street may be taken unaware.” See also, Frankel v. Hudson, 271 Mo. 495, 196 S. W. 1121; Tatum v. Croswell, 44 Ga. App. 853, 163 S. E. 228, and cases cited in opinion; Smith v. Spirek, 196 Iowa 1328, 195 N. W. 736.
The contention is made by counsel for defendants that plaintiff was not in his proper position on the highway and therefore was guilty of contributory negligence. It is true that the statute (Acts 1932, ch. 342, section 79) states that a pedestrian in proceeding along the highway must keep to the left-hand side of the road, but there is no provision of the statute which inhibits a pedestrian from going to the center of the highway for a proper purpose, under proper conditions. The plaintiff had a perfect right to examine the highway in order to ascertain the location of the spikes which determined the boundaries of his land. That he exercised due care when he went to the center of the road is clearly shown; that no obvious danger existed at the time is likewise shown. It cannot be said, therefore, that plaintiff was guilty of contributory negligence as a matter of law. Whether or not the plaintiff was guilty of contributory negligence as a matter of fact has been concluded by the verdict of the jury.
The rule as to the operation of a locomotive is firmly established in this jurisdiction and imposes upon those in control certain duties. In Southern R. Co. v. Bailey, 110 Va. 833, 67 S. E. 365, 370, 27 L. R. A. (N. S.) 379, Judge Keith said:
It is self-evident, when we scan the daily reports of highway accidents, that a similar responsibility should rest upon operators of motor vehicles upon the highway. Under the facts and circumstances narrated, it was the imperative duty of the driver of the automobile to sound the horn. Had! this been done at a proper distance from the plaintiff, it is inconceivable that the accident would have happened.
While the last clear chance doctrine, is not involved in this case, the recent case of Perkinson v. Persons, 164 Va. 172, 178 S. E. 682, 684, is illustrative of the duty imposed upon the driver of an automobile under certain conditions. In that case the plaintiff was crossing a street between intersections which, under the law, was prohibited; the defendant had just passed another car and was on the left side of the street and the plaintiff was directly in its path; when the car was some fifty to seventy-five feet from the plaintiff she darted diagonally toward the west side of the street, and as she did so, the defendant turned his car in the same direction and struck her when she was nearly across. In the course of the opinion, Mr. Justice Gregory said:
“The testimony discloses that Perkinson could have seen Mrs. Persons standing in the street when she was still 150 feet, or more, away. The jury had the right to conclude that if he had seen her when he should have seen
The action of the trial court in refusing to set aside the verdict as being contrary to the law and the evidence is without error.
The remaining assignment of error relates to the action of the court in giving this instruction:
“The court instructs the jury that if they believe from the evidence that the plaintiff being without negligence on his part was confronted by a sudden emergency caused by the negligence of the driver of the defendant’s car and was compelled to act instantly to avoid being injured, he cannot be held guilty of negligence simply because he did not make the wisest choice in seeking to avoid danger.”
From what has already been said it is apparent that we are of opinion that this assignment of error is without merit.
We find no error in the judgment and it is affirmed.
Affirmed.