Virginia Railway & Power Co. v. Harris

Whittle, P., 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 [659] it, but continued to drive across Main street, without accelerating his speed (which he says was “a good ordinary walk for a fast walking horse”), and, without even looking in the direction of the car, drove on the track in front of it. Immediately before the collision, the plaintiff hearing the noise of the car turned his head and looked, and the car, he says, was “right on top” of him. It was a right angle collision, and when it occurred the horses had just cleared the track, and the car struck the front wheel of the wagon, the impact occasioning the injuries of which the plaintiff complains. 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 [660] when there is an unobstructed view, just before entering upon the track, and is struck by a car before he can walk directly across, is guilty of a neglect of duty in not assuring or reassuring himself that there is not a car directly upon him, of which situation the fact that he is struck is conclusive proof.” 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.