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Lucas v. Craft

September 21, 1933


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

Present, All the Justices.


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

Under review is a judgment for the plaintiff who was run down and hurt by defendant's automobile.

That accident occurred at the intersection of Boush and York streets in the City of Norfolk. They cross each other at right angles. Boush street runs north and south and York street east and west. On the afternoon of July 27, 1931, Miss Iola F. Craft, a teacher by profession, boarded a bus coming south on Boush street. That bus was followed by another passenger bus which in turn was followed by a truck loaded with brick owned by the defendant, H. M. Lucas, and driven by his servant. Miss Craft's bus stopped by the bus stop station at said intersection, which station is on the west side of Boush street. Its south end is flush with the north side of York street. After getting off she walked around the front end of the bus and started across Boush street, intending to go to the Medical Arts building, which is on the northeast corner of these streets. As she passed her bus she looked to her left, which was north on Boush street, and saw nothing to indicate that it was not clear of approaching traffic. There was, however, a car coming east on York street -- "there was an automobile coming from York street into Boush and I kind of halted myself for the car to pass and as I did the car struck me." Mr. Brackett said: "I saw Miss Craft standing in the middle of the street and the truck bearing down on her." Estimates as to how far she had gone past her bus vary, but we think it may fairly be said that she was about the middle of Boush street when the accident occurred. The truck horn was out of repair and so was not sounded,

and she says that she was unaware of its approach until the moment of impact.

We have seen that when her bus came down Boush street it was followed by another bus. When the first bus stopped at the bus station the following bus stopped in its rear, and since Miss Craft did not see the truck it is fair to assume that it was following bus No. 2 and was then obscured from vision by it.

[1, 2] For any truck to run down a woman standing in the middle of an open street is almost necessarily negligence. Miss Craft was where she had a right to be. When she passed her bus she looked to the left and saw the way was clear, but she did see an automobile approaching and swinging to the right from York into Boush street. She did what any other prudent person would have done, "kind of halted" to see just how far this approaching car would swing out, for it is matter of common knowledge that cars in executing this movement do sometimes swing farther than they should.

[3] Since we are dealing with a verdict and judgment it is plain that the evidence is sufficient to sustain it. We cannot as a matter of law say that the defendant was not guilty of negligence, and we cannot as a matter of law say that the plaintiff was guilty of contributory negligence.

At the conclusion of the plaintiff's evidence, and again after all evidence for both parties had been introduced, the defendant moved the court to strike out the plaintiff's evidence on the ground that she had failed to prove actionable negligence on the part of the defendant and was, according to her own testimony, guilty of contributory negligence as a matter of law. After the verdict the defendant moved the court to set aside the verdict on these grounds. Both motions were overruled. The trial court was right.

[4, 5] Errors are assigned because of instructions given and refused.

This is plaintiff's instruction No. 2:

"The court instructs the jury that if you find from the evidence that Iola Craft started across Boush street at the intersection of York street before the truck of the defendant reached the intersection of Boush and York streets, you are instructed that she had the right of way over the said struck, and it was the duty of the driver of the same to either change his course, slow down, or come to a complete stop of necessary to permit the plaintiff to safely and expeditiously make the crossing, and if you find that on the occasion in question the plaintiff to exercising due care for her own safety and that the driver of the defendant's truck disregarded his duty as above set out, and that the same was the proximate cause of the plaintiff's injury, you must find for the plaintiff."

Exception was taken to this for these reasons: "This instruction assumes that the defendant saw the plaintiff before or at the time she was leaving the sidewalk when from all of the evidence this was impossible because the plaintiff herself as well as her witnesses testified that she could not see the truck and that this would of necessity corroborate the defendant's testimony that the driver of the truck could not see the plaintiff until she stepped beyond the bus."

All evidence is to the effect that the truck was going slowly, that the brakes were applied before the plaintiff was struck, and that it moved only two or three feet after the impact. The evidence of the truck driver is that Miss Craft "popped out" from the front of her bus into the path of his truck and that he did not know and could not have known of her presence at a time when it was possible to have avoided a collision.

Our statute defines the relative rights of pedestrians and motor vehicles at street crossings; it reads:

Acts 1926, ch. 474, section 73, as amended by Acts 1928, ch. 399, p. 1025:

"(a) The roadbeds of highway within cities and towns are primarily intended for vehicles, but pedestrians have the right to cross them in safety, and drivers

of street cars and vehicles shall exercise proper care not to interfere with such rights nor to injury them or their property.

"(b) When crossing highways or streets within incorporated towns or cities, pedestrians shall not carelessly or maliciously interfere with the orderly passage of vehicles and shall cross wherever possible only at intersections or cross-walks. Pedestrians in crossing any street at intersection with another street, shall at all times have the right of way over vehicles making right turns into street being crossed by such pedestrians.

"(c) At such intersection where no traffic officer is on duty pedestrians shall have the right of way over vehicles.

"(d) This shall not entitle the pedestrian to enter or cross the intersection regardless of approaching traffic, but shall be interpreted to require vehicles to change their course, slow down, or come to a complete stop if necessary to permit pedestrians to safely and expeditiously negotiate the crossing." Code, section 2145(73).

This instruction does not assume that the truck driver saw the plaintiff before or at the time she was leaving the sidewalk. It does say that she had the right of way. There was no traffic officer on duty and she did have the right of way and it was the truck driver's duty to change his course, slow down, or come to a complete stop if necessary to permit her passage in safety. The truck driver knew that the bus had stopped at a station stop and he should have known that it probably stopped to let off passengers who might intend to cross one of these intersecting streets. He also knew that if she intended to cross Boush street she could not be seen until she had cleared her bus. And so it was his duty, when he turned out to pass the stationary buses ahead, to remember this possibility.

[6] The language and intent of the General Assembly is so plainly expressed in the statute that it needs no interpretation or construction. It means what is

said. At intersecting streets where there are neither traffic lights nor traffic officers, the pedestrian has a superior right -- that is, the right to cross from one side of the street to the other in preference or priority over vehicles -- and drivers of vehicles must respect this right and yield the right of way to the pedestrian. The pedestrian's right of way extends from one side of the street to the other. It does not begin at any particular point in the intersection nor does it end at any particular point. It begins on one side of the street and extends until the pedestrian has negotiated the crossing. It is impossible, without nullifying the statute, to divide this right of way into different stages in the intersection, yielding the right of way to the pedestrian at one point in the intersection and denying it at another, all at the time of negotiating the one crossing.

[7] Instruction 2 properly told the jury how to apply this statute to the evidence in this case. It was plain, and no doubt the jury followed it, and upon it found against the defendant. We have no power to disturb that finding upon the point in question.

Any other conclusion would make the statute of little value. Heindl v. Perritt, 158 Va. 104, 163 S.E. 93; Virginia E. & P. Co. v. Blunt's Adm'r, 158 Va. 421, 163 S.E. 329; Ebel v. Traylor, 158 Va. 557, 164 S.E. 721; Moore v. Scott, 160 Va. 610, 169 S.E. 902, and Sawyer v. Blankenship, 160 Va. 651, 169 S.E. 551, decided at the late term of this court at Wytheville.

We follow these cases decided since our statute went into effect and not those which antedate ...

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