Harrell v. Virginia Electric & Power Co.

Holt, J., delivered the opinion of the court. By motion for judgment, the plaintiff, Ernest E. Harrell, sought to recover from the Virginia Electric and Power Company compensation in damages for injury to himself and to his automobile. That motion was based upon an accident which occurred in Norfolk on March 2, 1939, at about nine o’clock at night. He obtained a jury’s verdict, but that verdict was set aside by the court, which entered final judgment for the defendant. It happened on 25th street, between Llewellyn avenue and De Bree avenue, and near the center of that block. These streets are straig’ht and level and cross each other at right angles. The street car tracks down 25th street are made up of two lines, for eastbound and westbound traffic. The car that did the damage was moving west. Plaintiff’s automobile stood in front of his shop in this — 61 — block and near its center.- He came out and entered it witb tbe intention of making a “'IT” turn to tbe east. There was some trouble with his battery, but the motor picked up, and he proceeded on his way until he reached the westbound street car track, when it stalled and stood nearly at right angles across it from five to eight minutes and so stood until struck by the oncoming street car. Visibility was unusually good. There was some reflection from a recent fall of snow, and the moon was within three days of being full, although obscured, it is true, by some clouds. In these conditions this motorman came across Granby street, still farther to the east, across Llewellyn avenue, and on until he ran into the stalled automobile. He offers no explanation of his conduct beyond the fact that he was dazed by a street light at the Llewellyn avenue crossing. That he could have seen this stalled automobile had he been looking- is too plain for argument. As a further defense, the defendant points out that there is a city ordinance which prohibits a “U” turn in the middle of a city block. There is such an ordinance, but one can not run down or maim another merely because an ordinance has been violated. The plaintiff was negligent also. During all of this time he sat in his automobile, a single-seated closed Chevrolet, and labored with its starter. The street ear was lighted and was equipped with a standard headlight. He saw it when it was more than a thousand feet away. It was coming at normal speed, and he must have known about what that speed was; he had time enough to get out of his automobile and so had the same chance to avoid an accident that the motorman had. If one had a clear chance, the other had. Harrell tells us what he did: “I got out this way (demonstrating), put my left foot on the ground, brought this one out, shoved the door as long as I could, yelled at the man, and jumped for my life.” He said that “when I got my feet on the ground it looked to be 30 or 35 feet from me,” and elsewhere he — 62 — said that had it been 20 feet farther off, “I might have made it.” We need not concern ourselves with seconds or parts of seconds. He was, of course, familiar with his own automobile and should have known how long it would take him to get away. If he failed to allow himself time enough for this, he took the risk. Plaintiff testified on his own behalf as did two other witnesses. Mr. Frank E-. 'Coleman said that he was looking at Harrell, who was trying to start his automobile. “It (the streetcar) was within eight feet of the car when he decided to get out.” Mrs. Erma Daniel said that the street car was probably then its length away — “Q. The length of the street car? A. Yes, probably a little more.” Again the witness said that she could not state in feet how far away the street car was. “A. I noticed Mr. Harrell getting out and it was too close for my comfort. Q. Up to that time, Mr. Harrell made no attempt to get out of that car, that you saw? A. No, he didn’t.” It was then that this witness began to get excited and threw her hands over her eyes that she might not witness what appeared to be an impending tragedy. Immediately after the accident she heard Harrell say to the motorman: ‘‘ Good God, couldn’t you see me! ’ ’ It is further said that plaintiff might have gone free had his overcoat not been caught at- the bottom of his automobile door. “Q. Was there anything that kept you from jumping for your life at the last moment? “A. The only thing that I could think that kind of held me back was the overcoat. The overcoat was caught in some manner in the bottom of the door. “Q. Is this the coat (exhibiting a garment)? “A. That is the coat, yes, sir. “Q. Show us where it was caught. “A. Caught here (indicating). When I closed the door, it might have been caught in the bottom of the door. I know that held me back some.” — 63 — “Q. Those holes were made at the time, were they? “A. Oh, yes, at the time, yes, sir.” That Harrell was hurried and excited is perfectly plain. He, as he expressed it, “shoved the door as long as I could, yelled at the man, and jumped for my life. ” That he attempted to shut the door at all is indicative of his state of mind. Nothing was to be gained by it; it was an automatic act, done in an emergency for which he was in part responsible, and it was then that the tail of his overcoat got caught under the door and held him “back some.” Had he left his automobile as men ordinarily leave their automobiles the tail of his overcoat would not have caught under the door, and if in slamming its door the tail was caught, he could have released it in a moment had the time not been desperately short. Mr. Harrell was interested in getting his car out of the way and was relying upon the motorman to stop, as is shown by the observation that he first made to him. It is further contended that the plaintiff relied upon the motorman to slow down or stop at Llewellyn avenue. In cross examination on this point he said that the motorman did neither of these things. Further on his evidence reads: “Q. Mr. Harrell, you say you saw the street car coming all the time, you were watching it, and it was not checking its speed at all? “A. I did. “Q. It was apparent to you that he was not making any effort to stop, as far back as Llewellyn avenue? “A. Ordinarily, you would think that the man was going to stop at the corner there. I knew in mv own mind— “Q. I am talking about when it left Llewellyn avenue now; you saw he was not making any effort at all to stop when he left Llewellyn avenue? “A. "When he approached Llewellyn avenue I don’t know what he did. When he got to me I had to get out — 64 — of the car. When. I got ont on the ground it looked like he was thirty or thirty-five feet from me. Whether he was twenty feet, or forty feet, or what not, I was anxious to get away from there.” This plaintiff’s time was taken up in trying to start his motor and to save his car. He was not then looking at the street car but was relying upon its motorman. In Massie v. Firmstone, 134 Va. 450, 114 S. E. 652, in this statement: “As a general rule when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him. In such a situation he would be entitled to have the jury instructed upon his contention, or if there were a demurrer to the evidence, the facts would have to be regarded as established in accordance with the testimony most favorable to him. This is not true, however, as to the testimony which he gives himself. No litigant can successfully ask a court or jury to believe that he has not told the truth. His statements of fact and the necessary inferences therefrom are binding upon him. He cannot be heard to ask that his case be made stronger than he makes it, where, as here, it depends upon facts within his own knowledge and as to which he has testified. ’ ’ That is to say, the evidence of a planitiff testifying for himself must be looked to as a whole and the weight to be attached must not turn upon some statement which chances to be most favorable to himself. Moreover, the west side of Llewellyn avenue was 120 feet away. When he put his left foot upon the ground, he said that the street car was 30 or 35 feet away and that had it been 20 feet farther off “maybe I might have made it.” “No one can be allowed to shut his eyes to danger in blind reliance upon the unaided care of another without assuming the consequence of the omission of such care. Atlantic & D. R. Co. v. Ironmonger, 95 Va. 625, — 65 — 29 S. E. 319; Shear. & Red. on Neg. (6th Ed.), sec. 66.” Virginia & S. W. R. Co. v. Skinner, 119 Va. 843, 89 S. E. 887. This case in principle can not be distinguished from the recent cases of Dick v. Virginia E. & P. Co., 158 Va. 77, 163 S. E. 75; Driscoll v. Virginia E. & P. Co., 166 Va. 538, 181 S. E. 402, and Virginia E. & P. Co. v. Ford, 166 Va. 619, 186 S. E. 84. Plaintiff also claims that he should be reimbursed for cost of repairs to his automobile, $109.13. In some of its aspects this case is not unlike Chesapeake & O. Ry. Co. v. Hunter’s Adm’r, 120 Va. 699, 91 S. E. 181. Hunter’s automobile stalled on a railroad track. He was killed, and his automobile was demolished. His representative was allowed to recover for the car but not for decedent’s death. He undertook to clear his car in vain. Here Harrell had ample time in which to push his car away. He was confronted by no sudden emergency; he, himself, said that he could have cleared it. There is no error in the record. Plaintiff was negligent and the defendant was negligent, and each of them had a clear chance which neither took. The judgment of the trial court must be affirmed, and it is so ordered. Affirmed.