Floyd v. Nunn

Compton. J., delivered the opinion of the court. The controlling question in this personal injury action is whether a pedestrian who, while traversing a city street, enters an intersection crosswalk when the traffic light facing him is red has the right of way over a vehicle turning at the intersection. The pedestrian, plaintiff-appellee Darion J. Nunn, sued defendant-appellant Jasper H. Floyd claiming damages as the result of an accident occurring at about 11:00 p.m. on December 13, 1973 at the intersection of Huntington Avenue and 37th Street in Newport News. In addition to a grounds of defense, Floyd filed a third-party motion for judgment against Robert Wagonfeld contending Wagonfeld’s negligence was the sole proximate cause of plaintiff’s injuries. The trial court sustained Wagonfeld’s demurrer to the third-party complaint. Plaintiff subsequently obtained a jury verdict against Floyd for $15,000, upon which the court below entered judgment on October 22, 1975, and from which we granted a limited writ of error. — 835 — Huntington Avenue was one-way south with three traffic lanes and a parking lane adjacent to the western curb. 37th Street, also one-way and intersecting Huntington at right angles, had two westbound traffic lanes and a parking lane adjacent to its southern curb. Conventional traffic lights regulated this intersection and faced north, south, east and west. Plaintiff approached the intersection walking east on the sidewalk along the south side of 37th Street. As he prepared to step from the southwest corner to proceed across Huntington in the crosswalk to the southeast corner, he was faced with a red traffic light, which at the time was green for traffic heading south on Huntington. Plaintiff looked to his left and saw no traffic moving south on Huntington toward the intersection. He proceeded into the crosswalk and toward the southeast corner. As he was crossing, he saw defendant’s vehicle, moving west on 37th Street in the left travel lane, pull to the intersection and stop. Plaintiff continued across the street, still in the crosswalk. He testified that when he was five to six feet from the east curb of Huntington Avenue he heard the traffic light “click”, indicating a change of signal, at which time defendant made “a quick left turn”, and struck him in the crosswalk. Floyd’s evidence showed that as he was driving his vehicle in the rain west on 37th Street, he stopped in the left-hand westbound lane at the intersection in obedience to the red traffic light facing him. The vehicle windows were “foggy” and defendant was operating his windshield wipers. When the light changed to green, defendant proceeded to make a left turn to travel south on Huntington Avenue, at which time he saw plaintiff, for the first time, in front of his car. Defendant testified he “jammed on” his brakes and stopped about six inches from plaintiff. Then, according to Floyd, Wagonfeld struck defendant’s vehicle from the rear knocking it into plaintiff. Wagonfeld, who had been stopped on 37th Street directly behind, defendant and who was also turning left, admitted “tapping” the rear of Floyd’s stopped vehicle but denied the blow moved defendant’s car forward into the plaintiff. Defendant assigned error to the action of the trial court in sustaining Wagonfeld’s demurrer to the third-party motion for judgment. But Wagonfeld was not made a party to this appeal. Defendant’s notice of appeal is directed only to the plaintiff and the petition for appeal only lists plaintiff as an appellee. See — 836 — Rule B:22. Hence, we do not consider the correctness of the lower court’s action on the demurrer. Turning to the merits, the jury, of course, has settled in plaintiffs favor all conflicts in the evidence. We thus have a ease in which a plaintiff has been struck in a crosswalk, which he entered against a red traffic light, by a negligent left-turning driver who proceeded on a green light in his favor. The trial court granted, over defendant’s objections, instructions which permitted the jury to find that if the plaintiff entered the crosswalk “in due regard for approaching traffic”, albeit against a red traffic light, he had the right-of-way across “the entire street from one side to the other in such crosswalk”. This was error and we reverse. Plaintiff relies on Code § 46.1-231, which then provided: “§ 46.1-231. Right-of-way of pedestrians. — (a) The driver of any vehicle upon a highway shall yield the right-of-way to a pedestrian crossing such highway within _any clearly marked crosswalk whether at mid-block or at the end of any block, or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, except at intersections where the movement of traffic is being regulated by traffic officers or traffic direction devices. “(b) No pedestrian shall enter or cross an intersection in disregard of approaching traffic. “(c) The drivers of vehicles entering, crossing or turning at intersections shall change their course, slow down or come to a complete stop if necessary to permit pedestrians to cross such intersections safely and expeditiously. “(d) Pedestrians crossing highways or streets at intersections shall at all times have the. right-of-way over vehicles making turns into the highways or streets being crossed by the pedestrians.” Plaintiff argues that subsection (c): “does not state that the pedestrian must only have been in the intersection when the ■traffic control was in his favor. It states very succinctly that when the pedestrian is in the intersection, the turning motorist shall permit the pedestrian to cross safely, and the motorist shall take the necessary steps to permit the pedestrian to do so.” — 837 — He also contends that subsection (d) “further substantiates” his position and “gave Nunn the right of way over the turning vehicle of Floyd.” Defendant argues that subsection (a) controls this case; he asserts that, because of the exclusion set forth in the last clause of the subsection, a pedestrian crossing against a •red traffic light does not have the right of way over a turning vehicle. Plaintiff invites us, in effect, to decide (1) that a pedestrian is under no duty to obey the command of a conventional red traffic light, and (2) that if he does walk against the red signal, under the circumstances of this case he has the right of way. We decline to so decide. Not only is the overwhelming weight of authority contrary to this proposition,1 our statutory framework and our cases require the opposite conclusion. The evolution of the pertinent statutes must be traced; this will demonstrate that subsection (a), and not (c) or (d), apply here. Present § 46.1-231 descended from Code §§ 2154(123)(c) and 2154(126),2 first enacted in 1932. Acts 1932, at 655, 656. In this — 838 — analysis it will be important to note that the language of present subsection (a), and its exclusion, is identical in all material respects to the language of the very first enactment, Code § 2154(123)(c), dealing with pedestrian right of way at a controlled intersection. In Sanders v. Newsome, 179 Va. 582, 19 S.E.2d 883 (1942), present subsection (a), then § 2154(123)(c), was construed. There, in a pedestrian-automobile accident occurring at a right-angle, city, traffic light-controlled intersection, where traffic flowed in two directions on each of the two streets, we said: “When these statutes are read and construed together, as they must be, the reason for excepting the provisions of subsection (123) (c) at intersections where the movement of traffic is controlled by traffic officers or signal direction,devices is manifest. To give a pedestrian, crossing' an intersection on a red light, the right of way would create much confusion, hinder the orderly movement of traffic and unreasonably impair the safety of travelers upon the highway.” 179 Va. at 595,19 S.E.2d at 888. We further stated: “A traffic signal light is not installed for the sole purpose of benefiting vehicular traffic. When the movement of pedestrians is in accord with the regulation of such devices, the right of way expressly given by other statutes is not impaired.” Id. (emphasis added). Thus we see that prior to 1950, the construction placed on the exception in present subsection (a) was that it prevented a pedestrian crossing an intersection on a red light from having the right of way. In 1950, along with a wholesale revision of the traffic laws, a major overhaul of the pedestrian statutes took place. This, of, course, was done against the background of § 2154(123)(c) and the statements in Sanders, which indicated that traffic lights control pedestrians as well as vehicles and that, as we have said, a pedestrian crossing on a red light does not have the right of way. Code § 46-243 (1950) was enacted dealing only generally with the duties of pedestrians crossing streets; it also contained — 839 — the broad right-of-way language of present subsection (d) of 46.1- 231,3 which does not specifically refer to intersections controlled by traffic lights. A comparison of the statutes will reveal that the broad language of the last sentence of § 46-243, now subsection (d), was adopted from the last sentence of old § 2154(126)(a), note 2 supra, dealing with right turns into streets being crossed by pedestrians. In 1950, Code § 46-244 was created,4 also with right-of-way language, but with the same specific exception, italicized in the footnote, (formerly in § 2154(123)(c) and now subsection (a) of § 46.1-231) excluding its application to an intersection controlled by traffic lights. Thereafter, at the time of the 1958 recodification of the Motor Vehicle Code, the final sentence of old 46-243 was placed in new 46.1- 231 as subparagraph (d), thereby eliminating right-of-way language from the general pedestrian statute, new 46.1-230, but placing such language in the same section which contained the traffic-controlled intersection exception in the first sentence thereof.5 Significantly, nowhere along the line after Sanders was decided in 1942 has there been any change in the pedestrian statutes which either permitted a pedestrian to walk against a red signal or accorded such pedestrian the right of way over any vehicle, including a left-turning one. “§ 46-243. Pedestrians crossing streets. — When crossing highways or streets within incorporated towns and cities, pedestrians shall not carelessly or maliciously interfere with the orderly passage of vehicles. They shall cross wherever possible only at intersections. They shall cross only at right angles. Pedestrians crossing highways or streets at intersections shall at all times have the right of way over vehicles making turns into the highways or streets being crossed by the pedestrians.” — 840 — Therefore the evolution of the statutes in issue combined with the Sanders statements demonstrate that the facts of this case do not bring it within the broad' and all-inclusive language of either subparagraph (c) of § 46.1-231 or subparagraph (d) thereof, which deals generally with right of way over vehicles by pedestrians crossing “at intersections”. Rather, because this pedestrian was crossing within a clearly marked crosswalk at an intersection regulated by traffic direction devices, subsection (a) applies and Sanders controls; the pedestrian crossing on a red light does not have the right of way over left-turning vehicles. Accordingly, the trial court committed reversible error in holding to the contrary and in giving instructions to the jury granting the right of way to this plaintiff. Plaintiffs reliance on Arney v. Bogstad, 199 Va. 460, 100 S.E.2d 749 (1957) is misplaced. There, we held a pedestrian was entitled to cross at a traffic-controlled “T” intersection when the red light was against traffic, 199 Va. at 463, 100 S.E.2d at 752.. Plaintiff here argues that he, too, proceeded when the traffic light facing defendant was red. But the important fact which distinguishes that case from this is that the pedestrian in Amey, because of the peculiar arrangement of the traffic lights, was not faced with a red light. Indeed, there was no traffic signal whatever facing him. In the view we have taken of this case, it is unnecessary to pass on the other issues raised by the defendant. For the foregoing reasons, the judgment in favor of the plaintiff will be annulled, the verdict of the jury will be set aside, and the case will be remanded for a new trial on all issues, consistent with this opinion. Reversed and remanded. Footnotes [1] See 4 Blashfield Automobile Law and Practice §§ 142.14-.15 (3d ed. 1965); The Law of Automobiles § 118 (Michie Co. pub. 1947); Annot., 2 A.L.R.3d 155,167,218-24. [2] Code § 2154(123)(c) (Supp. 1932) provided: “§ 2154(123). Right of way. — . . . (c) The driver of any vehicle upon a highway within a business or residence district shall yield the right of way to a pedestrian crossing such highway within any clearly marked crosswalk or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, except at intersections where the movement of traffic is being regulated by traffic officers or traffic direction devices.” Code § 2154(126) (Supp. 1932), in pertinent part, provided: “§ 2154(126). Pedestrians. — (a) When crossing highways or streets within incorporated towns and cities, pedestrians shall not carelessly or maliciously interfere with the orderly passage of vehicles and shall cross wherever possible, only at intersection or crosswalks. 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 streets being crossed by such pedestrians. “(b) At such intersection where no traffic officer is on duty, pedestrians shall have the right of way over vehicles. “(c) 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. “(d) Pedestrians shall cross only at right angles, and shall not cross highways diagonally; nor, except to board a street car,.,.” [3] Code § 46-243 (1950) provided: [4] “§ 46-244. Bight of way of pedestrians. — The driver of any vehicle upon a highway within a business or residence district shall yield the right of way to a pedestrian crossing such highway within any clearly marked crosswalk or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, except at intersections where the movement of traffic is being regulated by traffic officers or traffic direction devices. “No pedestrian shall enter or cross an intersection regardless of approaching traffic. “The drivers of vehicles entering, crossing or turning at intersections shall change their course, slow down or come to a complete stop if necessary to permit pedestrians to safely and expeditiously cross such intersection.” [5] Additional changes, not here pertinent, were made and became effective before the accident in question. See Acts 1962, ch. 471; Acts 1968, ch. 165; Acts 1972, ch. 576. For post-accident changes, see Acts 1976, ch. 322.