122 Va. 657 | Va. | 1918
Lead Opinion
delivered the opinion of the court.
This is a personal injury action in which the judgment under review, awarding damages to the defendant in error, was rendered against the plaintiff in error upon its demurrer to the evidence.
The Virginia Railway and Power Company owns and operates a double track electric line in the city of Richmond, which along Main street runs east and west. The westbound track is located' north of the center line of the street, while the east-bound track is placed south of that line. The plaintiff was the only witness who testified in the case. His evidence, so far as material to be stated, is as follows: He was employed by one of the wholesale grocery merchants of the city to drive a two-horse delivery wagon. On the afternoon of November 1, 1915, plaintiff was driving the empty wagon southwardly along Seventeenth street a short distance from its intersection with Main street. He was driving along the right-hand side of Seventeenth street at a slow rate of speed—one of the horses trotting slowly and the other walking. When the horses reached the northern line of Main street, the plaintiff first looked east, and discovering no car on the west-bound track (the one nearest to him), he then looked west and saw a car on the eastbound track half a block away, coming toward the crossing. Although he knew that the car was dangerously near and was approaching rapidly, he paid no further, attention to
It is obvious from his version of the incident (assuming that defendant was guilty of negligence, which we do not think is shown), that plaintiff’s own negligence, which continued down to the moment of the collision, if not the proximate cause of the accident, at least efficiently and concurrently contributed thereto. It was plainly the duty of the plaintiff, when he discovered the approaching car, to keep a lookout on its movement, and to so regulate his own conduct as to avoid danger of collision. In the circumstances detailed, the dictate of common prudence demanded such precaution; and if plaintiff chose to disregard it, he was the author of his own misfortune and his contributory negligence defeats his right to recover for the consequent injury.
We have many times denied recoveries in this class of cases. The following sufficiently illustrate the principles upon which this decision must rest: Virginia Railway & Power Co. v. Johnson, 114 Va. 479, 76 S. E. 916; Reichenstein v. Va. Ry. & P. Co., 115 Va. 862, 80 S. E. 564; Springs v. Va. Ry. & P. Co., 117 Va. 826, 86 S. E. 65.
The principle is clearly stated in Manos v. Detroit United Railways, 168 Mich. 155, 162, 130 N. W. 664, 666 [L. R. A. 1917 C, 689], as follows: “The crucial principle in this class of cases is that one who neglects to look for a car
So, also, in Fowler v. City of Seattle, 90 Wash. 375, 156 Pac. 2, a recovery was denied a teamster, who, under circumstances substantially identical with those in the present case, drove on the track in front of an approaching car, of the dangerous. proximity of which he had knowledge, on the ground of contributory negligence.
It may also be observed that the cases of Derring’s Admr. v. Virginia Ry. & Power Company, 122 Va. 517, 95 S. W. 405, and Virginia Ry. & Power Company v. Boltz, 122 Va. 649, 95 S. W. page 467, in which opinions were handed down at the present term, are indistinguishable in principle from this case.
It follows from what has been said that the judgment under review must be reversed; and this court will enter such judgment as the trial court ought to have entered, and will sustain the demurrer to the evidence and render judgment thereon for the demurrant, the Virginia Railway and Power Company.
Reversed.
Dissenting Opinion
dissenting:
The majority opinion holds the plaintiff in the trial court guilty of contributory negligence per se, because he crossed the street railway track in front and in full view of an approaching car without looking in the direction of the car again after he had seen it when it was about half a block away.
With the utmost deference, I must say that I think such holding ignores the rule established in Virginia by the case of Richmond Traction Co. v. Clarke, 101 Va. 382, 43 S. E.
In the last cited case, the street car was about half a' block away (just as in the instant case) when the plaintiff saw it approaching, and that case is otherwise, as it seems to me, directly in point in the instant case.
In the instant case, the plaintiff testified that he did not notice the speed of the car when he first saw it. He said on this subject: “I didn’t pay any attention to how fast it was running when I first came into Main street; all I took notice of was a good distance off, about half a square.”
In the Virginia cases cited in the majority opinion, there were other distinguishing circumstances in addition to the failure of the traveler to “look,” except in the case of Springs v. Va. Ry. & P. Co., 117 Va. 826, 86 S. E. 65. In the case of Va. Ry. & P. Co. v. Johnson, so cited, the added circumstance concerning the conduct of the plaintiff was