Russ v. Destival ( 2004 )

Present: All the Justices
HOWELL RUSS
v. Record No. 030892 OPINION BY JUSTICE CYNHTIA D. KINSER
March 5, 2004
JAMES DESTIVAL
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
The sole question in this appeal is whether a jury
instruction stating that a bicyclist has a duty to refrain
from entering or crossing an intersection in disregard of
“close or approaching” traffic is an inaccurate statement
of law. In light of the plain terms of Code § 46.2-924(B),
we answer that question in the affirmative and thus
conclude that the circuit court erred in granting the
instruction.
Howell Russ, the appellant, filed a motion for
judgment against James Destival, the appellee, claiming
damages for personal injuries allegedly sustained as a
result of an accident that occurred at the intersection
between Braddock Road and Prestwick Drive in Fairfax
County. Russ was riding a bicycle westbound along a path
that runs adjacent to Braddock Road and, as he proceeded
across Prestwick Drive, he was struck by an automobile
driven by Destival.1
Braddock Road is a four-lane highway divided by a
median strip. Prestwick Drive is a two-lane street that
provides ingress and egress to a residential neighborhood
and has a posted speed limit, according to Russ, of 25
miles per hour. As Destival traveled along Prestwick Drive
and approached the intersection between these two roads, he
came to a stop sign and white “stop line” at the end of
Prestwick Drive. According to his trial testimony,
Destival stopped his vehicle behind the white line but then
“eased” his vehicle forward, beyond the white line, to
within six to eight feet of the eastbound lanes of Braddock
Road in order to see oncoming traffic more clearly. He
intended to turn left and proceed westbound on Braddock
Road. When he accelerated forward to cross the eastbound
lanes to the median, he heard a yell and a “large thud.”
Destival admitted that he never saw Russ before the impact.
Russ testified that, as he approached the intersection
in question, he saw Destival’s vehicle come to a stop
beyond the white line “but not in the path of the bike
path.” He stated that Destival’s vehicle “roll[ed] through
1
Russ was towing a trailer in which his three-year-old
son was riding.
2
the stop sign and stop[ped] just before the end of the bike
path.” Russ admitted that he never stopped his bicycle
before crossing Prestwick Drive in front of Destival’s
vehicle.
During argument on jury instructions, Destival offered
Jury Instruction Q, which stated:
A bicyclist has a duty to use ordinary care when
he is riding on or crossing the hard surface of a
highway:
(1) to keep a lookout for motor vehicles;
(2) to refrain from entering or crossing an
intersection or the hard surface of a
highway in disregard of traffic which is
close or approaching in such a manner that a
reasonable person would not attempt to enter
or cross; and
(3) to step or move from his course into a place
of safety if it reasonably appears to him
that he is in danger of being struck by a
motor vehicle.
If a bicyclist fails to perform any one or more
of these duties, then he is negligent.
Destival had modified the instruction from its original
version to include the word “close” in subsection 2. The
circuit court granted the jury instruction over Russ’
objection, and the jury returned a verdict in favor of
Destival.
Russ filed a motion to set aside the jury verdict and
enter judgment in his favor, or in the alternative, to
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grant him a new trial. The circuit court denied Russ’
motion. This Court granted Russ an appeal limited to the
following assignment of error:
The court erred in its rulings regarding the jury
instructions on the appropriate law, and further in
failing to grant the plaintiff judgment
notwithstanding the verdict on these grounds.
A. The court erred when it approved defendant’s
Instruction Q, as modified by the defendant, as it was
an inaccurate and misleading statement of Virginia
law.
As Destival correctly argues, the sole issue before us
is whether Instruction Q was a correct statement of
Virginia law. Any question about whether that instruction
was applicable to the facts of this case is not encompassed
within the assignment of error. Thus, we will confine this
opinion to the narrow issue raised by Russ’ assignment of
error. See Wolfe v. Board of Zoning Appeals, 260 Va. 7,
14-15, 532 S.E.2d 621, 624-25 (2000) (we do not consider
arguments that are not the subject of an assignment of
error).
Russ’ contention that Instruction Q was an inaccurate
statement of law focuses on the insertion of the word
“close” in subsection 2. He contends that the instruction
as modified altered the provisions of Code § 46.2-924
establishing a pedestrian’s right-of-way and that the jury
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was thus presented with an inaccurate legal standard
regarding his duty of care.
The relevant provisions of Code § 46.2-904 state that
“[a] person riding a bicycle . . . on a sidewalk, shared-
use path, or across a roadway on a crosswalk, shall have
all the rights and duties of a pedestrian under the same
circumstances.”2 A pedestrian’s right-of-way vis-à-vis a
vehicle is set forth in Code § 46.2-924(A):
A. The driver of any vehicle on a highway shall
yield the right-of-way to any pedestrian crossing such
highway:
1. At any clearly marked crosswalk, whether at
mid-block or at the end of any block;[3]
2. At any regular pedestrian crossing included in
the prolongation of the lateral boundary lines of the
adjacent sidewalk at the end of a block;
3. At any intersection when the driver is
approaching on a highway or street where the legal
maximum speed does not exceed thirty-five miles per
hour.
2
In light of the statute, we will use the terms
“bicyclist” and “pedestrian” interchangeably.
The term “crosswalk” is defined as “that part of a
roadway at an intersection included within the connections
of the lateral lines of the sidewalks on opposite sides of
the highway measured from the curbs or, in the absence of
curbs, from the edges of the traversable roadway; or any
portion of a roadway at an intersection or elsewhere
distinctly indicated for pedestrian crossing by lines or
other markings on the surface.” Code § 46.2-100.
3
The pictures introduced into evidence demonstrate
that there was not a marked crosswalk at the intersection
of Braddock Road and Prestwick Drive.
5
However, Code § 46.2-924(B) states, in pertinent part, that
“[n]o pedestrian shall enter or cross an intersection in
disregard of approaching traffic.” This latter provision
is determinant of the issue in this appeal.
Subsection 2 of Instruction Q informed the jury that a
bicyclist has a duty to refrain from entering or crossing
an intersection in disregard of traffic that is either
“close or approaching.” The addition of the word “close”
altered the statutory duty of a bicyclist. The provisions
of Code § 46.2-924(B) require a bicyclist to refrain from
entering or crossing an intersection in disregard of
“approaching traffic.” The statute does not include
traffic that is “close.” To state in a jury instruction
that a bicyclist must refrain from entering or crossing an
intersection in disregard of traffic that is “close,” i.e.,
stopped, runs afoul of the plain terms of Code § 46.2-
924(B) and a pedestrian’s right-of-way established in
subsection A of that statute.
Contrary to Destival’s argument, this Court’s
decisions in which we have used words such as “near,” “in
close proximity,” “close,” or “dangerously near” in
describing those vehicles that a pedestrian should see and
heed do not support a different result. In Hopson v.
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Goolsby, 196 Va. 832, 839, 86 S.E.2d 149, 153 (1955)
(quoting Hooker v. Hancock, 188 Va. 345, 356, 49 S.E.2d
711, 716 (1948)), we stated that “if a person having a duty
to look ‘carelessly undertakes to cross without looking,
or, if looking, fails to see or heed traffic that is
obvious and in dangerous proximity and continues on into
its path, he is guilty of negligence as a matter of law.’ ”
Accord Carson v. LeBlanc, 245 Va. 135, 140, 427 S.E.2d 189,
192 (1993); Cofield v. Nuckles, 239 Va. 186, 190, 387
S.E.2d 493, 495 (1990); Straughan v. Nash, 215 Va. 627,
632, 212 S.E.2d 280, 283 (1975). Elaborating on a
pedestrian’s duty to keep a lookout for vehicles, we
explained that “[t]he duty of looking is based on the
wisdom of seeing whether traffic is approaching, where and
at what speed” and “[i]f looking discloses approaching
traffic, then the right to proceed is to be tested by
whether a person of ordinary prudence would attempt it.”
Hopson, 196 Va. at 839, 86 S.E.2d at 153 (citing Rhoades v.
Meadows, 189 Va. 558, 562, 54 S.E.2d 123, 125 (1949)).
These cases and the others cited by Destival emphasizing a
pedestrian’s duty to see and heed “approaching” traffic are
consistent with the directive in Code § 46.2-924(B)
requiring a pedestrian not to enter or cross an
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intersection in disregard of “approaching traffic.” They
do not alter a pedestrian’s duty in that instance.
Thus, we hold that Instruction Q was not an accurate
statement of Virginia law and that the circuit court erred
in giving the instruction to the jury.4 Accordingly, we
will reverse the judgment of the circuit court and remand
this case for further proceedings.
Reversed and remanded.
4
We express no opinion regarding whether Instruction Q
without the modification applies to the facts of this case
or whether, in a new trial, the circuit court should give
such an instruction to the jury.
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