129 Va. 297 | Va. | 1921
delivered the opinion of the court.
S. M. Ormsby was struck and seriously injured by a Ford truck owned by Stephen Putney Shoe Company, Incorporated, and driven by Thomas Cooper, a colored man in the employment of that company. Ormsby died shortly afterwards. An action for damages followed, in which his administrator recovered against the company a verdict and judgment for five thousand dollars.
The accident occurred in the city of Richmond, on the east side of Ninth street, a few feet north of the point where that street is intersected by the north line of the driveway leading east from the Capitol Square. The exit from the driveway, marked by two large posts on each side giving the appearance of an open gateway, is immediately opposite the eastern terminus of Grace street, and, except
Ormsby was coming out of the Capitol Square using the walk on the north side of the driveway and had reached the sidewalk on the east side of Ninth street about the time Cooper, driving the truck eastward on Grace, was approaching the intersection of Grace and Ninth. Ormsby was evidently intending to cross Ninth and go west on the north side of Grace. Cooper’s route was across and up Ninth on the east side. Ormsby walked out of the Capitol Square, proceeded almost straight across the walk on Ninth, stepped from the curb into the street, and was struck by the right front fender of the truck. Cooper had made the crossing and turn in the manner required by the traffic ordinance, proceeding as far as he could straight across Ninth, making a full turn, and proceeding up Ninth as close to the right hand curb as practicable. There were no other vehicles or pedestrians on the street or sidewalks between Ormsby and Cooper, and each was in clear and easy view of the other from the time Ormsby came out of the Square on the sidewalk. The substance of Cooper’s testimony is that he was not exceeding the lawful rate of speed either as he came down Grace or as he turned and went up Ninth; that Ormsby stepped from the curb only about three or four feet ahead of the truck; that he tried to save him by swerving quickly to the left; and that Ormsby “came against the fender” and was knocked down in that
Bedford further testified, in part, as follows: “Just as he (Cooper) turned the bend, I saw this gentleman (Ormsby) and I had seen him a second or so previous, coming through the walking gate above the driving gate. He got to the curbing about the time the truck got to the turn, and he stepped off the sidewalk. I did not see it hit him, but I saw him fall and roll. The truck passed by him. * * * I don’t know how far he had gotten off the sidewalk when he was struck, but when he fell he was three or four feet from the curbing; he was there when I picked him up. * * * The best of my recollection is that he came straight through the walking gate, and walked straight over the sidewalk. It was so quick that I' don’t think he had time to do any walking diagonally from the time I saw him
. Under the circumstances, as above detailed, which seems to us to be as favorably stated as possible from the standpoint of the plaintiff, we are unable to see how it could
It is argued that Ormsby must have been well out in the street when the truck struck him, because his body was found three or four feet from the sidewalk, and, having been struck by the side of the fender, would naturally have been thrown back some distance in that direction. We are not impressed with this argument. It overlooks the fact that Cooper, who is not in any way contradicted in this respect, states that when he discovered Ormsby’s danger he swerved quickly to the left, and that Ormsby, proceeding forward, walked against the fender and was knocked
“Q. And you swerved your car away from him?
“A. As soon as I saw him I cut the car around' like that (indicating).
“Q. When you hit him he was knocked back to the sidewalk?
“A. No, sir.”
“Q. Where did the fender knock him?
“A. The fender did not knock him. He came against the fender and came along like that a little distance.”
This is entirely in harmony with the testimony of Redford, who simply says that he saw him fall and roll over. There is nothing, therefore, in the position in which the body was found upon which we can reasonably hold that Ormsby had started from the sidewalk at a time when a reasonably prudent man might have thought he had time to cross.
The foregoing conclusion renders it unnecessary to pass upon the questions arising as to certain of the instructions
For the reasons stated, the judgment complained of must be reversed, and this court being of opinion that all the facts were fully developed at the trial and now appear in the record, and that upon such facts the plaintiff is not entitled to recover, will, in pursuance of the practice provided for in section 6365 of the Code, enter a final judgment here for the defendant.
Reversed.