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Sawyer v. Blankenship

June 15, 1933

EUGENE L. SAWYER
v.
MATTIE J. BLANKENSHIP



Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

Hudgins

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

Mrs. Mattie J. Blankenship, an elderly woman, was struck and permanently injured by an automobile driven by an employee of Eugene L. Sawyer. Upon the trial to recover damages for these injuries, the jury returned a verdict of $2,050 in favor of plaintiff, which was approved by the trial court. Defendant sought and obtained this writ of error to review that judgment.

The only error assigned is to the action of the court in refusing to set aside the verdict upon the ground that it was contrary to the evidence and in refusing to enter judgment for defendant.

[1] Defendant admits that the evidence was sufficient to warrant the jury in finding him guilty of negligence, but insists that it shows that plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff contends that the record does not show that defendant assigned this as a ground for his motion to set aside the verdict. Defendant's motion, as recorded, is in this language.

"And whereupon the said defendant by his attorney, moved the court to set aside the verdict of the jury upon the grounds that it is contrary to the evidence and without evidence to support it, and to enter final judgment for the defendant on the grounds that there is sufficient evidence before the court to enable it to decide the case upon its merits; and the further hearing of which motion is continued."

While, in strict conformity with the provisions of Rule 22, it would have been better had defendant stated that one of the grounds for the motion was that the evidence conclusively established that plaintiff was guilty of contributory negligence, it is clear from the record that this was one of the main grounds of defense to this action in the trial court. It is set out in the statement of defense, and it is shown in the examination and cross-examination of

witnesses and in the objections to plaintiff's instructions. Hence in making this defense in this court, no theory or question is urged which was not presented to the trial court. See Regensburg v. Commonwealth, 159 Va. 1024, 167 S.E. 247; Kelly v. Schneller, 148 Va. 573, 139 S.E. 275; James v. Haymes, ante, page 253, 168 S.E. 333.

The accident occurred on May 6, 1931, between seven and eight o'clock p.m., at the intersection of Twenty-eighth street and Hampton boulevard, in the city of Norfolk, Virginia. Hampton boulevard, a wide street running north and south, is divided into three sections. The western section, between curbs, is used for vehicular traffic; the center, with double line of rails, is used, except at intersections, exclusively for street car traffic; and the eastern section, between curbs, is used for northbound vehicular traffic.

Twenty-eighth street, which is only about sixteen feet wide between curbs, intersects Hampton boulevard, not at right angles, but at such an angle that its northwest corner is somewhat farther north than its northeast corner. Plaintiff proceeded across the boulevard from west to east. As she crossed the street-car tracks, she looked to her right and saw several automobiles, which she estimated to be some three blocks from the intersection, approaching from the south. She concluded that she could cross the eastern section of the boulevard in safety and proceeded on her way. She stated that as she stepped from the curbing into the traffic lane she again looked to her right and ...


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