Green v. Ruffin , 141 Va. 628 ( 1924 )

McLemore, J.,

dissenting.

I find myself unable to concur in the opinion rendered in this ease, and am presenting herewith some of the reasons that impel me to a different conclusion from that reached by a majority of the court.

The majority opinion has reversed the case because the trial court instructed the jury on the “last clear chance” doctrine; this court holding that the evidence in the case, although considered as upon a demurrer to the evidence rule, did not present a state of facts that would support an application of the doctrine of discovered peril or last clear chance.

For the purposes of this discussion the following may be stated as the pertinent facts proved:

Mrs. Ruffin, the defendant in error, attempted to walk across from the south to the north side of Main street in the city of Danville, which street runs east and west. She was attempting to reach her home situated on the north side of the street. The plaintiff in error, Mrs. Green, was driving a Ford sedan along the said street, going west and was therefore on the north side of the street. Upon this street there is a double track street car line, the north rail of the west bound track being fifteen feet from the north curb line that divides the driveway from the sidewalk.

Mrs. Ruffin had reached the north rail of the west bound car track, when she stopped for a moment or so, glanced to her right and saw approaching from the east the car of plaintiff in error, some 125 feet away. She immediately started to cross the fifteen feet of space to the curb, walking briskly, and with her face slightly in a westerly direction, and to that extent, with her back slightly towards the approaching ear; that she looked straight ahead, and did not further observe the car, until it had struck her just as she was in the act of stepping on the sidewalk.

Mrs. Green, the driver of the car, for some unexplained reason, failed to observe Mrs. Ruffin during the entire period of her presence upon the street until the instant of the impact; when she (Mrs. Green) says she “saw a person moving very rapidly, running leaning over, very fast,” and she stated to a companion in the car that she feared she had hit someone. She also stated at the hospital to Mrs. Ruffin in the presence of Mrs. Slade, a sister of defendant in error, that “I didn’t see you.”

According to this evidence, by which the court is bound, Mrs. Green ran her ear 125 feet during all of which time Mrs. Ruffin was in full view, and in a position of danger—from the moment she left the car track until struck at the curb. If plaintiff in error had been looking, she would have seen Mrs. Ruffin walking briskly to cover the danger space of fifteen feet, and would also have seen that she was not observing the rapid approach of the car, and would not clear the danger zone, although walking quickly and, as Mrs. ' Green says, “moving very rapidly, running leaning over, very fast” presumably in an effort to escape the car, and reach the position of safety.

It must not be forgotten that she was not moving towards the ear, but the car was overtaking her; that she did not run into the car, but was run down by the. car; that she was in a position of danger, the car in a position of safety; that she was trying to reach a point of safety by the quickest and most direct route, while the car was bearing down upon her by the only route that could have caused the injury, and overtook her just as she was reaching the curb; that the car had the entire street upon which to move, and escape the accident, save and except the small space occupied at the moment by defendant in error next to the curb; that from the first moment Mrs. Ruffin stepped in the path of the oncoming automobile she was in danger, and whether she tried to escape or not, it was necessarily apparent or should have been to any person of ordinary prudence, that injury to the pedestrian could be avoided by the exercise of the smallest amount of prevision. During the entire time the ear was traveling the 125 feet, the slightest turn of the wheel or retarding of the speed of the ear would have saved her from injury; for running as she was to escape the car, only a second or two would have enabled her to have won the race with the car, and reached a position of safety.

There was apparently one doubtful chance to overtake and strike her while traversing the fifteen foot space, and many clear chances on the part of the driver of the car to avoid the collision, beginning when she stepped in the path of traffic, and continuing until almost the very moment of impact.

The law of the case seems to me to be controlled not by the decision in So. Ry. Co. v. Bailey, 110 Va. 833, 67 S. E. 365, which was decided fourteen years ago, and was considering the doctrine as applied to railroad trains or other dangerous instrumentalities operating upon rails that giye no freedom of direction but must move along a fixed path, and is a proclamation of danger to every person approaching them.

Besides, the facts in the Bailey Case bear not the slightest resemblance to those obtaining here. Bailey was standing so near the railroad track as to be struck by an engine which was approaching, in full view for some 1,000 feet. The engineer had a right to assume that he would not stand still and allow the train to strike him. The train was bound to follow the course fixed by the rails, and was therefore guilty of no negligence.

That fine of decisions, much more recent, of which Va. Ry. & Power Co. v. Smith, 129 Va. 269, 105 S. E. 532, may be taken as a fair exponent, state the doctrine which seems to me to be decisive of this case, although it is not referred to in the majority opinion which ably discusses the “last clear chance” doctrine at considerable length.

In the Smith Case, Kelly, P., says:

“It is quite conceivable that a motorman might have the right of way (as did this motorman) and yet see, or be in a position to see, that unless he slackened his speed or stopped his car a collision with a vehicle about to cross ahead of him would be inevitable. In such a case, if the discovery of the inevitable was made, or ought to have been made, before it was too late for him to slow down or stop, he would have the last clear chance to avoid the injury, and the street ear owner would be liable, regardless of the fact that the negligent conduct of the driver of the vehicle precipitated the situation and continued up to the moment of impact. This was the essential, though not actually expressed holding in the Meyer Case and is here one of the views which the jury might have taken of the evidence.”

It would seem that this decision and the majority opinion in this case under consideration are in direct conflict and may reasonably give rise to interesting speculation as to what the law on this subject is in this State.

In McNamara v. Rainey Luggage Corp. (decided June 12, 1924), 139 Va. 197, 123 S. E. page 518, it is said:

“And upon the principle that one will be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action involving the questions of negligence and contributory negligence should, by the exercise of ordinary care, have discovered the negligence of the other after its occurrence in time to foresee and avoid its consequences, then such party is held to have notice; and his negligence in not discovering the negligence of the other under such circumstances is held the sole proximate cause of a following injury.”

In Sherman & Red. on Neg. (5th ed.), section 99, it is said:

“The principle is that the party who had the last opportunity of avoiding the accident is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury.”

Mrs. Ruffin’s negligence must have been apparent, or there could be no last clear chance doctrine to invoke, for “the last clear chance doctrine presupposes the negligence of the party injured.” Wilson’s Adm’x v. Portland Ry., 122 Va. 160, 94 S. E. 347.

“Not to discover negligence of another is negligence and. the sole proximate cause of injury.” Va. Ry. & Power Company v. Cherry, 129 Va. 262, 105 S. E. 657.

Thus we see that the failure of Mrs. Green, whose car did the damage, to discover the negligence (gross it may be) of Mrs. Ruffin, in attempting to cross the street 125 feet in front of the car, is negligence on the part of Mrs. Green and the sole proximate cause of the injury. The negligence of the plaintiff therefore did not prevent a recovery, if the accident could have been averted by the defendant.

“Persons walking on railroad tracks are not excused by the last clear chance doctrine, for inattention or for failure to keep a constant lookout in both directions for approaching trains, but if they have not done so and are discovered upon the track and the engineman can by signals warn them of approaching danger, and thereby obviate the consequences of this negligence, it is his duty to do so.” Gunter’s Adm’r v. So. Ry. Co., 126 Va. 565, 101 S. E. 885.

If this rule applies to cases where trespassers are on. the track of railroads, utterly heedless of the danger of an approaching train that cannot change its course, and of the warnings furnished by the track itself; a fortiori, should it be given effect, when the dangerous instrumentality is an automobile subject to well-nigh instant control of speed and change of direction.

■ “The negligence of a plaintiff who is injured while violating an ordinance, like his negligence in any other form, must proximately contribute to the injury in order to constitute a bar to recovery, and it does not so constitute in contemplation of law. (Italics ours.) If after the plaintiff’s peril is, or ought to be, discovered, the defendant had a last clear chance to avoid the injury.” Cherry’s Case, supra.

So Judge Sims says in Director General v. Blue, 134 Va. 366, 109 S. E. 482, 114 S. E. 557:

“The reason of the thing, as well as the uniform course of authority, lead irresistibly to the conclusion that the doctrine of the last clear chance applies just as well when it is apparent that a person is on the verge of stepping heedlessly into danger, as when it appears that he is likely not to change his position so as to get out of danger.” (Italics ours.)

Let us assume that defendant saw the plaintiff on the street car track “on the verge of stepping heedlessly into danger” or at the moment she left the track or when she was half across the intervening space of fifteen feet from the rail to the curb—the law imposes this duty upon her—Cherry’s Case, supra. Let us also assume that Mrs. Green was one hundred and twenty-five feet away when plaintiff stepped in the path of danger; that Mrs. Ruffin traveled in a slightly diagonal direction from the approaching car, and was looking-straight ahead as she crossed the street, and continued so to look after having once glanced to her right as she left the north rail of the car track, and saw the car about one hundred and twenty-five feet away; and that while traveling the entire one hundred and twenty-five feet, Mrs. Green was looking at plaintiff, and while thus looking, ran her down at or near the north curb of the street, inflicting the injuries complained of, seeing all the while that Mrs. Ruffin was not noticing the approach of the car. It can hardly be denied that under such circumstances a continuing opportunity was presented to plaintiff in error, if she had been looking, to have avoided the injury.

Upon a motion to set aside the verdict, we must assume every fact above recited as established. We are entirely satisfied that had Mrs. Green seen the defendant in error, the accident would not have occurred, for a turn of the steering wheel when only ten or fifteen feet away would have unquestionably prevented it (for she was just in the act of stepping upon the curb when struck), yet the law imposes upon her the duty of seeing and her failure to perform her duty in this behalf in no sense relieves her of the obligations thus imposed— nor of the legal consequences that follow.

In collision cases between vehicles and pedestrians, it is almost always the pedestrian that is injured. If the failure of the pedestrian to observe the approach of, and avoid collision with, the vehicle is such contributory negligence as will bar a recovery, then verily, there can be no recovery in those cases where an individual is killed or injured in crossing a street, however reckless the driver may be. The pedestrian must see the danger and avoid it or be precluded by the court because of his negligence, and this without regard to the negligence of the driver. Thus the doctrine of discovered peril, or last clear chance, has been successfully abrogated in cases of collision upon public thoroughfares.

It has been stated in the majority opinion that the instructions present two theories of the plaintiff’s case, producing a conflict and inconsistency that entitles the plaintiff in error to a new trial.

Where the trial court has instructed the jury upon more than one count in the declaration, or one theory of the case, and this court upon review is of opinion that one of the theories upon which instructions were granted would not justify a recovery, the verdict and judgment should be set aside, for the court cannot say but that the jury rendered their verdict upon that phase of the case that did not properly state a cause of action. But this is not true in those cases where there is sufficient in the pleadings, and in the evidence responsive thereto, to justify a verdict upon either of the-allegations of negligence to which the jury have had their attention directed by the instructions. Low Moor Iron Company v. La Bianca’s Adm’r, 106 Va. 83, 55 S. E. 532, 9 Ann. Cas. 1177; Adamson’s Adm’r v. Norfolk & Portsmouth, etc., Co., 111 Va. 456, 69 S. E. 1055; Washington & So. Ry. v. Cheshire, 109 Va. 741, 65 S. E. 27.

For the reasons stated the conclusions reached by the trial court seem to be right and the judgment should be affirmed.