Record No. 1078

WILLIAM S. HEINDL, Plaintiff in Error,

v.

ASA PERRITT, Defendant in Error.

FROM THE LAW AND EQUITY COUBT OF THE CITY OF RICHMOND.

''The briefs shall be printed in type not less in size than r:;mall pica, and shall be nine inches in length and six inches in width, so as to conform in dimensions to the printed records along with which they are to be bound, in accord­ance with Act of Assembly, approved March 1, 1903; and the clerks of this court are directed not to receive or file a brief not conforming in all respects to the aforementioned requirements.''

The foregoing is printed in small pica type for the infor­mation of counsel.

H. STEWART JONES, Clerk.

!58() !Of

IN THE

·Supreme Court of Appeals of Virginia .AT RICHMOND.

WILLIAJ\I S. 1-IE:U~DL, Plaintiff in Error,

vs. ....

ASA PERRITT, Defendant in Error. 1 .•

1,o the Honorable the Ju.stices of the s~~pre1ne Court of Al)­peals:

Your undersig11ed petitioner, vVilliam S. Heindl, ~shows unto your Honors that he is aggrieved by a. final judgment of the Law ·and Equity Court of the City of Richmond, Virginia, in an action at law in which your petitioner was the defend­nut and Asa Perritt the plaintiff. },or eonvenience, the par­ties will be hereafter referred to as they appeared before the 'Trial Court. Said judgment was entered on the 12th day of J anua.ry, ·1931.

In said ac.tion plaintiff claimed damages of Twenty Thou­sand ( $20,000.00) Dollars from the defendant on a.ooount of 11ersonal injuries received by the plaintiff and caused by the alleged negligence of the defendant arising out of an auto­mobile accident. Upon the trial of the case there was a ver­~1ie.t against the defendant in the sum of Five Thousand ($5,000.00) Dollars (l\L R., 4.) Judgment 'vas entered sus­taining· the verdict of the jury in favor of the plaintiff and it is from this judgment that the -defendant prosecutes this ap-peal. ·

Counsel for the petitioner desire to state orally to the Court the reasons for r·eviewing the clecision complained of.

Your peti~tione.r adopts this petition as his original brief and forwarded a copy thereof by mail to William .C. Conl­houtH, attorney for the plaintiff, on the 24th day of February, 1931.

0

•

2 Suprem~ Court of Appeals of Virginia.

RULE OF DECISION.

As has been noted, there having been a verdict and judg­ment in favor of the plaintiff, in the statement of the facts of 'the case he is entitled to such a statement in afZcordance with the facts as they appear most favorably to himself. Green vs. Smith, 153 Va. 675, a.t 680. In order to .satisfy this rule, after ·stating the general physical situation existing at the place of collision, we shall quote at length from the plaintiff's own testimony in describing the minute details of the occur­rence. He cert~nly cannot hQpe (nor does he request) a statement stronger than that. '' N ~ litigant can successfully ask a court or jury to believe that he has not told the truth. His statement of fact and the necessary inferences thereupon are binding upon him. He cannot be heard to ask that his case be ma.de strong·er than he makes i.t * * * where it' depends upon facts within his own knowledge a.nd as to which he has testified.'' B a8sett vs. Wood, 146 Va. 654, at 661.

A transcript· of the record is filed herewith (as are two original exhibits by stipulation of counsel, M. R., 63),- from which will appear the following facts:

FACTS. I :

On the night of January 24th, 1930, between the hours of seven and eight fM~. R., 17) the plaintiff, whose eyesight and hearing are both good ( M. R., 38), alighted from a southbound street car (M. R., 34) on Harrison Street at the northwest corner of the intersection of Harrison and Grace Streets (lVl. R., 34), in. the City of Richmond. The character of the street car is known as a ''one man'-' car (M. R., 35) and the plaintiff alight~d from the front thereof (M. R., 35). With­out waiting for the street car to pull out the plaintiff imme­diately walked in front of the ca.r to cross Harrison Street. from the place he alighted near the northwest corner of the intersection to the northeast eorner thereof. Plaintiff's origi­nal exhibit A. P. No. 1 (M. R., 19) submitted along with this petitio-n by stipulation of counsel (1\'I. R., 63} is a photograph showing ·a .street car in the position of the one from which the plaintiff .alighted (M. R., 19). Plaintiff's~ original exhibit A. P. No. 2 (M. R., 23) is likewise submitted, being a blue­print drawn to scale showing the intersection of the streets and other f.acts .of ·a physical nature. T·he plaintiff walked. straight across (1\:I. R .. , 35) and as he reached the far rail (in the direction he was going)· of the northbound car tracks

. '

•' \

l I ~ WilliamS. Heindl v .. Asa Perritt. 3

(M. R., 20) he was struck by the ·automobile operated by the defendant which was proceeding in a northernly direction (opposite to that of the street ea.r) on Harrison Street.

By way of anticipation the two assignments of error by the defendant are based on the proposition that ~oneeding the. negligence of the defendant, the· plaintiff was guilty· :of -contributory negligence as a matter of law. With this in mind we direct the Court '·s -attention directly to the testimony of the plaintiff himself concerning the care he exercised for :qis own safety:

(M. R., 37 :)

'' Q. Will you, as exactly as you can, Mr·. Perritt, say when was the first time you looked south on Ha.rrison S.treet f

A. I had just turned around the front of the· car. Q. Is that the last time you looked to the south Y A. I don't recall any looking over there after that. Q. So, you would say that you did not look over there any

more? A. I don't rooall that I looked over there any more. I

saw there was no danger when I first looked and I don't recall that I looked any more.,

• • (M. R., 38 :)

'' Q. Which way wag the car going which you were in col­lision with. Of your own knowledge, did that come either east or west on Grace Street and turn up there, or did it turn north on Harrison. Of your own knowledge, where did it come from?

A. 0£ my own kn()wledge, the :first time I saw this car it wa.s right at me, within three feet, headed north. It had not made any turn at all after I saw it. ·It was headed straight north; looked like it was in three or four feet of me. It was right a.t me; I. don't know just how far; but right at my side when I saw it, headed straight up Harrison, towards Broad.''

• • (M. R., 43:)

"Q. You saw the oor when it got in three feet of your

4 Supreme Court of Appeals of Virgmia.

. A. I would say three or four feet. Just as this car passed me I heard that terrible roaring and I glai;J.ced and there it was right on me. · - · .

Q. Did you turn around and look south Y A .. No; I just heard it and I throwed my eyes as I heard

that thundering noise. As I saw it I whirled and tried to get away, but it was so c.l(}se on me I did not make the geta:.. way."

(M. R., 40-43 :)

'' Q. From the time you turned the corner of ·the str~et ca.~ until the time yon reached the first of the northbound car tracks; if you had looked south, do you know of anything ·which 'vould have prevented you from seeing the onconung automobile t

By ~Ir, Coulbourn: If your Honor, please, I object to that question. He stated that he did look south.

By the Co:urt : He· can answer that question .

. A. I have just answered that. I looke.d .south when I came' over and there was no car moving in that direction. I looked down as far on that track as I thought necessary, and there was no ca.r moving there. Evidently, if he was moving, he .,vas moving very fast.

· By :J\IIr. lfay: I move the court to strike out that part of the evidence : ''evidently he was moving very fast.''

By the Court: Your motion is granted and the jury is told to disregard tha.t part. of the answer.

By Mr. j\lfa.y: Q.· Do you understand the question, ~fr. Perritt? A. Yes, I understood it. If I had been looking over there,

which I did look, I did not see anything. When I did look again I was in the car track. I saw this automobile coming· on me. I saw this other one pass me right in this car track; 'vhere I could have seen him, if I had looked over there. Pos­sibly if I had looked I could have seen him on S'outh Harrison Street, but I had just looked over there and did not see any­thing. I thought my way 'vas clear and nothing 'vould over­take me before I could get across, unless it was a flying ma-chine. ·

~\~;~K~~ ~:~~:~~~;r~A~ll~:r?;~ -;··· .. . . ·: ~ ·. q.' -~-:

·~ ~

.. · ; - .. ·:... .i . "•. < I

·. . . .

I

:· I .

...G..-~~~--:-

William S. Heindl v. Asa Perritt. 5

Q. Yon did not see any o.f these around there? A. No, sir, not at tha.t time of night. Q. I will repeat the question: From the tini.e you turned

the corner o.f the street car until the time you reached the first of the northbound car trac1{s, if you had looked south, do you kno'v o.f anything which would have prevented you from see­ing the oncoming automobile?

A. There was no obstacle on the intersection, whatever, to have prevented anybody from seeing. . Q.. How far could you see south?

A. I. could have seen half way of the blook, or near half lvay, or at least forty or fifty feet on the other side. .As I went across there was light. all along near the intersection of Harrison. I could have seen as far on that as any ordinary street. I looked ac.ross, as I told you at first, to see if I was in danger any way of anything. I did not ·see any automobile or car. That is why I turned to look to see if I was clear in crossing. ·

Q. If the automobile had headlights burning you could have seen it a block or more away, could you not 1

A. I could ha:ve ·Seen it a block, but I did not look. Q. How far did you look t , A. 20 or 30 feet. Between the intersection at any ordinary"

gait I could have .made it across if he had been within 20 feet of the i~tersection, and I did not see anything as I started across, and at any time· I could have seen anything· coming in there, if I had looked, because there was nothing between us except the car going west on- Grace ·street.''

• •

(~L R., 44:)

'' Q. This parked car, you speak of, I believe you stated that did not interfere with your vision do·wn the streetf

1\.. No, that wa.s over on the side, to the curbing. Q. That would not interfere with your vision south on Har­

rison Street¥ A. No, sir.''

It is apparent from the testimony that the plaintiff knows little or nothing concerning the occurrence other than that he 'vas injured. Although, as has been pointed out, there wa.s nothing to obscure his vision after he .started around the front

6 Supreme Court of Appeals of Virginia.

of the street car, he hardly knew what struck him. He cl~ to have seen the defendant'·s car for the first time when it reached a point three or four feet from him, but even that glimpse was from the corner of eye for he did not turn around and look to the south when he heard the 'lthundering" noise, but "I just throwed my eyes" (M. R., 43), a.n<;l having ·no knowledge o.f the manner in whieh the collision ooourred the plaintiff ealled the defendant a.s an adverse witness (M. R., 49) hoping thereby to make out his ease. . The defendant testified, insofar as the assignments of error are material, as follows: · · ,

(M. R., 50:)

''Q. Did you see Mr. Perritt before he stepped in front of your carY :

A. I did not ·see Mr. Perritt until he stepped in front of the car.

Q. How do you know 1\fr. P~rritt walked in front of the street car if you did not see him T

A. I knew he walked in front of the street ear because he said he did.

Q. What part of your car struck him Y A. The left side of my car, the left front'. Q. Do Y·OU mean your left running board f A. The left front. Q. What part, the "fender, the wheel, the bumper or what!

. A. I think it was the bumper. . · · Q. That is, the left front of your bumper struck him Y

A. Yes, .struck ~·fr. Perritt. Q. What became of lVIr. Perritt then? A. It knocked him to the right and to the front. Q. Then you struck him again, did you notY· A. I did not strike him again. I struck him once, with the

left front of my car, and knocked him to the right of the front of my car and then ·stopped.

Q. Did you drag him 1 A. No, I did not drag· him. . Q. Where was Mr. Perritt when you brought your car to a

stop¥ A. He was to the right of my car and to the front. Q. Y~u stopped your ca.r within a car length and struck

him originally with the left frontT . A. I would say I .stopped within the length of the ca.r/"

I ' I

WilliamS. Heindl v. A.sa Perritt.

(J\,I. R., 52:) · '' Q. What kind of lights have Y9U on your car f

A. I doD: 't have that same ear a1 present.

7

Q.. I mean on the car that you had at the time of th& ae­cidentf

A. I had good lights.''

The testimony of the defendant· as set {)ut is binding Qon the plaintiff. There being no- evidence in eonfliet with it, and not being incredible on its face, this ·Court will accept it as true. Even upon a· demurrer to the evidenCe a party is entitled to the benefit of his evidence not in oon.flict with his adversary .. Farmer's Ad. vs. 0. & 0. Ry. Co., 144 Va .. 65, at 91..

ASSIGNMENTS OF ERROR .

.Assigrvment of Error No. 1.

The Court erred in refusing to set aside the verdict of the Jury and enter final j'/Ulgment for the defendant on the grout~~d that the defendoot was guilty of corz.trwutory negligence as

· a matter of lOIW (M. R., 6).

A reference to the grounds of defense (M. R., 5) will dis­close the defendant relied on the contributory neglig~nce of the plaintiff as a defense to this action in the following three particulars :. · . · · ·

"(a) Crossed the street in front of the automobile without exercising a reasonable lookout for his own safety; · ·

(b) Either looked and saw the lailltom()bile which came in collision with him and walked in its path regardless ·Of the existing danger, or did not look at all;

(c) Did not exercise reasonable care generally for his own r-;afety in crossing the street."

• As the evidence already point'ed out, taken in ~onnecLion

with the case we will refer to in a moment, clearly convicts the plaintiff of contributory negligence as a matter .of law, the action of the learned Trial Court was directly contrary to many decisions of this Court and should not be sustained .

.Seldom does it ooour that counsel are able to find a ease

8 Supreme Court of Appeals of Virginia.

so nearly in point as is Meade vs. Saunders, 151 Va. 636. Here one :Meade in the night time was crossing Broad Street in the City .of Richmond from the south to the north side thereof at the intersection of Broad and Second Streets. As he left the sidewalk he noticed an automobile about half a. block away, coming towards him, but "thinking" he could make it, looked no more in the direction of the approaching automo­bile. Before clearing the street he was struck and injured. ~J:lhe -sole contention in the case was whether 1\iea.de was guilty of contributory negligence which barred his recovery. In passing upon this question it was said:

''If, as from this record is apparent, th~ plaintiff never looked for, or saw, the defendant's car, after leaving the sidewalk until he was in collision with the rear end thereof, then his negligence was the proximate cause of his injury, and there can be no recovery. If it can be .said that he was struck by the front of the car, which bore down upon him, we are confronted with a situation where a pedestrian who sees an automobile approaching, leaves the curb to cross the street in front ·o.f the approaching ·car. The ear is· all the while in full view if he but looks, and he knows it is coming. As­sume that the defendant was negligent up to the instant of the accident, for failing to see and avoid injuring plaintiff, tbere was an equal opportunity for the plaintiff to have seen and avoided the collision, and he was therefore negligent in hot doing so.

''As was said by Kelly, P., in Stephen Putney Shoe Cornpany vs. Ornisby's Adm,r., 129 Va. 297, 105 S. E. ~63:

'' 1 1'1~ other words, if he did look he was bo'UI1zd to see the

trU(Jk, and 'Was negligent as a 1natter of law in stepping in front of it; and if he did not look, his negligence as a nwtter of law is none the less apparent.' Virg·inia. Rail~vf111J mul Power: Com~p01n.y v. Boltz, 122 Va. 649, 95 S'. E. 467; Hendry v. Vir­ginia Railu;ay and Power Go1npany, 130 Va. 282, 107 .S. E. 715. "' (Italics ours.) - · ·

: And at page 643 of_ the opinion;

· ''Here the car and the pedestrian are traveling at right angles, and their paths must cross only a few feet ahead. There is a. clea:r view and the ·pedestrian has seen the car ~pproaching. _A collision under such circumstances can only

--- -----------~

William S. Heindl v. A~a Perritt. 9

arise as the result of the eoncurring -or independent negli­gence of the plaintiff.·

'('If the continuing negligence of a plaintiff, ·up to the time of the injury, concurs with the negligence of the defendant in causing the injury, the plaintiff eannot recover.' Consutn­ers' Brewing Comparny vs. Doyles' Adtnr., 102 Va. 399, 46 S. E. 390, quoted with approval in· Green vs. Ruffin~ supra.''' (Italics ours.)

!

All t.hat has been quoted from tl1e case of JYleade vs. Sa'un­ders is equally applieable to this c.ase·. If 1\Ieade was guilty of C•ontributory negligence as a matter of la,v, certainly this plaintiff is also•. 1\!Ieade looked and saw. Perritt lnoked and did not even see. It i.s, therefore, evident that the pre­cautions taken by ~Ieade for his own safety 'were greater than those taken by this plaintiff.

'fhe case of Stephen P·utney Shoe Cornpany vs. Onnsby's .A dn~r., 129 Va .. 297, is equally applicable· to t.his case, the only difference is that .the accident involved in the Steven Putney Shoe Company case occurred in the daytime.

In the case of Va. Ry. & P. Co. vs. Boltz, 122 Va. 649, it ai)­peared that the plaintiff walked from the curb in crossing a street and wa.s struck by a street car when there was noth­ing to obscure her vision. The plaintiff testified .she looked before stepping upon the tracks and sa.,v no car, but said the Court ''this statement cannot possibly be true and must be disregarded". The same could be said of this plaintiff who testified he looked as he came around the street car-he had :u1 unobscured view south on Harrison Street, from which: direction the defendant came-it is undisputed the lights on the automobile were "good". The truth is that according to the plail)tiff himself, no effective looking was ever done by l1im. Thus, he testified:

(M. R., 42:)

"Q. If the automobile had headlights burning you could l1ave seen it a block or more a.way, could you not¥ ·

A. I could ha.ve seen it a. block, but I did not look. Q. How far did you look' A. 20 or 30 feet. Between the intersection at any ordinary

gait I could have made it across if he had been within 20 feet of the intersection, and I did not see anything as I started

10 Supreme Court of Appeals of Virginia.

across, and at any time I could have seen anything coming in there, if I had looked, because there. was nothing between .us, except the car going west on Grace Street.''

The ink is hardly dry on the last opinion concerning the character of evidence in this case. We refer to the case of C.&; 0. Ry. vs. Barlow, decided January 15, 1931, and not yet reported in the advanoe sheets of the reporters. The plain­tiff, an automobilist, wa.s injured at night by . a train at a

. crossing. At a point thirty feet from the cros~ing he had an · unobstructed view o.f the track in the dirootion from which the train, with headlight burning·, came. The plaintiff testi­fied : ''I looked good both ways'' and ''all the time'' and saw nothing. A judgment on a. verdiet for the plaintiff wa.s reversed ·and final judgment entered for the de.fendant. The .plaintiff's testimony with re.ferenee to looking was disre .. gardedas being· "contrary to the common experience of ma.n ... kind''. We quot'e at length from the- opinion of the Court :

''•Comparing ·the respective speed a.t which the train and the automobile were tra.veling we :find that when the auto­mobile 'vas 30 feet from the center of the main .. line track the train was :five .times as f.ar a.way a.nd approaching five times as· rapidly, aud yet the plaintiff claims he did not see the headlight or rays of light therefrom and was unaware of the approaching train. Under these circumstances t.o believe that the plaintiff looked, and continued to look, and yet failed to observe the oncoming train is contrary to the eo-mmon experi· cnce of mankind.

"'fhis Court, iu C. ct 0. Ry. Co. v"S. Anderson, 93 Va. 665, 25 S. E. 947, held, that notwithstanding the rule required that the ease in the a.ppellate court was- to be considered as upon a demurrer to evidence, 'that rule, while it may and often does require us to accept as true that which is oapable of proof, though the preponderance of evidence be ever .so great against it, cannort' compel us to -accept as. true what in the nature of thing-s could not have oc0urred in the man­ner and under the circumstances narrated, and may be said, the ref ore, to be inea.pa.ble .of proof.' See, also, Harvey's . Case,l03 Va. 850,49 S. E. 481; Pete.rs·vs. Sa. Ry. Co.~ 135 Ala. 533,' 33 .S'outh. 332.

'tIn lllrtz vs. Rcdlroad Co., 34 Ia .. 154, 159, it is said: 'A man may possibly think he sees an object which has no existence in f·act, but which it may be difficult, if not impossible, to

' I'

William S. Heindl v . .A.sa Perritt. 11

prove did not exist, or was not seen. But an object and power of sight being conceded, the one ma;y not nega.tive the other.' See Marylomd vs. Rolilroad Oo,, 123 Pa .. 487, 16 Atl. 747, 10 Am. St. Rep. 541; Myers v~ Railroad Oo., 186 Mo. 562, 38 S .. I~ .. 308; Ra4lroad Go. vs. P01.mds, 27 ·C .. C. A. 112, 82 Fed. 217 •.

• In Moo-re on Facts, sooti_()n 160, citing the case of Hook vs. lJfissouri fac. R. Co.,-162 Mo. 569, 63 S. W. 366, it is said:· . 'Courts are not .so deaf to the voice of nature or so blind to the laws o.f physios tha.t eve.ry utterance o.f a witness in dero­gation o.f these laws will be treated a.s testimony of probaztive value because of its utterance. A court will.treat that ·as un .. said by a witness which in the very nature of things .could

./ not be sajd.' · · .

ff In the ease of N. ~ W. Ry. 0~. vs. Strickler, 118 Va. 153, 86 S. E. 824, it is .said: 'It is impossible that the plaintiff could have traversed the thirty feet, listening and looking, over a clear track of 1,500 feet, and not have seen an ap· proaehing motor truck until it was too near for him to stop short of the traek, or for the truck to avoid the collision. He says that his vision was good. That he looked, as claimed, continuously while passing .. a.ver the thirty feet, and did not see the motor truck approa-ching anywhere within the dis­tance of 1,500 foot, is an incredible statement that· eannot be accepted. He could have ,stopped within three ()r f-our feet of the track and avoided the accident. It was his duty to look and listen for railroad vehinles. Upon the plaintiff's own · statement, the conclusion is unavoidable tha.t he f.ailecl tc loo~: at any ·point within thirty feet of the traclt, or, if he looked, that he failed to heed the approaclt of the. motor truck, which . he must necessarily have seen. ~ * * That the plaintiff both looked and .listened so a.s to make his looking and listening effective, a.nd neither .saw nor: heard the· rapidly approaching motor at any point within the clear unobstructed view of 1,500 feet, is wholly incredible.

ti' This eourt has repeatedly declared that courts are not required to believe tha.t which is contrary to human experi­ence and the laws of nature, or which. they judicially know to be incredible. Though the case be heard as upon a de­murrer t.o the evidence, the court· will not stultify itself by nllowi.ng a verdict to stand,_ although there may be evidence tending to support it, when the physical facts demonstrat~l' such evidence to be untrue, and the verdict to be ..unjust and unsupported in law and in fact.' C. lt 0. By. Co. vs . .Ander-

12 Supreme Conrt of. Appeals of Virginin.

sonJ 93 V a. 650, 25 S. E. 947 ; Harvey vs. Con~mowwealth, 103 V-a. (850) 860,49 S. E. (481) 480; N. tt W. Ry. Co. vs. Crowe's Adm'r., 110 Va. 798, 67 S. E .. 518; Pe'WnSylvania R. Ct>. vs .. Jenkins, 119 Va..186, 89 S. E~ 97; Southern Ry. Co. vs. Mason, l19 V:a ... 256, 89 S. E .. 229; Virgi11.ia & S. W .. Ry. Co. vs. Skin­t'ber, and Sa'me vs. Harris, 119 Va. 843, 89 S. E .. 888; !Ian­co-ck vs. N. dl; W. Ry. Co., 149 Va. .. 829, 141 S. E. 849; N. & W. Ry. Co. vs. Hardy, 152 Va. 783,. 148 .s. E. 839.' " ·

1\tfention is made by the plaintiff .of a.nothe.r automobile "proceeding west on Grace .Street" (M R., 42), but it is not cla·imed this one hindered him in :seeing that of the defendant. lie testified (].II. R., 42) :.

" * ~ * Between the intersection a.t any ordinary gait I could ha~ve made it a.cros:s if he had been within 20 feet of the intersection, and I did not see anything as I started across, and at any time I eould have seen anything coming in there, if I had looked, because there 'vas nothing betwee~ us, except the car going west on Grace Street."

Even if it was claimed (and it is not) and admitted that the car· on Grace would obscure the vision of the plaintiff had he looked southwardly on Harrison the result would be the sanie. The faet is he never looked to the south after he sa'v the car on Grace (J\11. R .. , 36, taken in connection 'vith lVI. R., 37). Ag·ain, 'vhile there is no evidence in the case that the car 011 Grace "rould ha:ve obscured the vision of ,the plaintiff had he looked south, even if such were a fact, it would avail him nothing, for in the case of Jones vs. Va. Power Co., 153 Va. 704, .a.t 707, the same excuse was offe,red by a plaintiff· automobilist injured by a street car. In refusing to accept the excuse this Court said (707) :

'' Thei'e is much emphasis in the argument for the plaintiff npon the theory that tl1e plaintiff's vision to the north, from which direction the street car was coming, \Vas obscured by the other street car 'vhich passed him going north. A con-5ideration of the physical facts makes it clear to us that un­due emphasis is placed np.on this fact. It is perfectly certain that before the car going north, which passed him, reached the crossing, his view to the south of the- approaching north­bound ca.r wa,g unobstructed. Even thoug·h this view was afterwards obstructed for a few seconds during which the .southbound car \vas approaching·, it is _also true that this obstruction, the northbound car, passed in a fe'v sec~nds,

----~--- ~~--~~---~--..

William S. I!eindl v. Asa Perritt. 13

leaving his view of the approaching southbound car again 1.1nobstructed. The plaintiff testified and does not say either that his view wa.s obstrueted by the northbound car or that he looked before attempting to cross the southbound track upon which he wa.s injured."

The Trial Court rendered no oral or written opinion. vVe are, therefore, unable to explain to this ·Court upon what theory the verdiet was sustained. We attach to this Petition a copy of the memorandum of authorities submitted the Court below by counsel for the plaintiff. From this it will appear counsel concede (see page 24 .of .the attached memorandum) ''no question of the last clear chance" was involved. Coun­sel make t'vo other arguments whicll will be answered in the following order:

1. That neither the case o.f Meade vs. Saunders or Stephe·n Put'J~ey Shoe Con~pany vs. Onnsby's Admr., relied on by the defendant, a.re applicable because both of those eases were d~ided before. the passage of the Act giving· pedestrians the right of way over vehicles a.t crossings ; and

2. That this case was controlled by the cass of Core vs. 1Vil­hel1n, 124 Va. 150; Thon~as vs. llietzendorf, 128 A. (N. J.) 162, and Burch vs. Abercrombie, 133 P. (Wash.) 1020.

1. The Act upon which the plaintiff relies to support the first contention is found in Instruction A (M. R., 58), the ma­terial part of which is as follows:

" (C) At such intersection where no traffic official is on duty, pedestrians shall hav~· the right of way over vehi~les.

(D) This shall not entitle the pedestrian to enter or cro~s the intersection regardless of approaching traffic, but shall be interpreted to require vehicles to change their c.ourse, slow down, or come to a complete stop if necessary to permit pe­destrian~ to safely and expeditiously neg~otiate the crossing~''

It is submitted there is not a single word in the Act which 'vould lead one to. believe the duty of a pedestrian to exercise reasonable care for his own safety has been abridged in the slightest particular. All that can be .said of the Act is that the care of the automobilist may have been increased and that a breach of its terms would be negligence per se. We have .conceded the- negligence of the. defendant and respectfully

.14 Supreme Court of Appeals of Virginia .

submit that of the plaintiff a.s a matter of l(JIW even more ap­parent.

There are no Virgini~ cases on the sections of the Act quoted. There probably never will be~ The Statute is too plain for doubt. It is self-exp~atory. Section '' (10)" un· doubtedly gives the plaintiff the right of way but s·ect.ion '' (D) '' spooi:fically states ''This shall not entitle the pedes­trian to (lnter or cross the intersection reg·ardless of ap­proaching traffic''. If the defendant was neglig·ent in usurp­ing the right of way the conclusion is inescapable that the plaintiff was ·also neg·ligent, as a matter of law, in crossing the. street "regardless of ~pproaching tra.f:fie".

We quote from the leading textwriters and cases of the na­tion con~erning the effect of a. statute giving the right of way to a pedestrian upon that pedestrian's duty to exercise reason~ble care for his 0"\\"'11 safety:

42 c. J. 1148:

- "Right of way. A statute or ordinance giving to pedes­trians the right of way over vehicles at street intersections and public crossings means only that when a pedestrian and a._ vehicle appr-o-ach a crossing a.t the same time or in such m.anner that if both continue on their respective courses there is danger of collision, ·the pedestrian is entitled to the first use of such crossing, a;n.d such reg·ulation itn no way impCllirs

. the du-ty of a pedestrian to exercise ordinary care far his own safety, * • '* • " (Italics ours.)

Btash:field on Automobiles, Vol. 2, Sec. 7, p. 1108:

'' ~ * • And a statute or city ordinance giving pedestrian the right of way over crossings at street intersections does

. not impair the duty of pedestrian to exercise ordina.ry care · to avoid collisions with vehicles, should the driver disregard

the pedestrian's right of way. ?y Such a regulation means no more than that when two or more persons, moving in different dirootions, approach a crossing, -so that there is danger of collision, then the one having the preference is entitled to .the first use of the cross-ing. -'If Pedestrians cannot heedles.sly cross busy :street, where au­tomobiles a.nd other traffic pass to and fro, without taki~g;

William S. Reindl v. As a Perritt.

the least precaution to discover and avoid approaching ve• hicles. A pedestrian stepping into the street at an inteJ;"seotion in front of ·an automobile, the lights of which she saw about ten feet aw~, after taking three or four steps, was guilty of contributory negligence whether she first looked in its di­rection or not, or, if she did look .and saw the automOtblle approaching· and deliberately stepped in front of it, she was negligent, and if she failed to. look, then it was neglig-.ence to. ·. step into the street without satisfying herself as to whether she could safely do so.'~ ·

• • Rolfs vs. Mullins, 162 N. W~ (Iowa, 1917) 783~ at 785:

''IV. Appellant appears to rely ·somewhat on a portion of section 3 of a. city ordinance, a portion of whieh raads: 'Pe. destrians are hereby given the right of wa.y over erossings ~t street intersections.' But this in no wise impairs the duty of pedestrians to exereise ordinary care to avoid collisions with vehicles. It means no more than 'tbat, when tw-o or more persons moving in different directions appro·aeh a cross­~ng at the same time or ju sucll manner tha.t if both or all con· tinue their respectiv~ courses there is d.a.nger of collision, then the one having the preference i-s entitled to. the first use of such crossing, and it is the duty of the others to give him reasonable opportunity to do sCI'. Switzer vs. Baker, 160 N. W. 372."

Bora vs. Yellow Cab Co., 135 A. (N. J., 1927) 889, at 890:

~,' o» • =» Of course, a pedestrian at a street crossing, who happens to have, under the Tr.a.ffie Aet, in the eireumstances, the right of way over an automobile approaching such cross· ing at the same time, is not relieved of the legal duty_ to use reasonable careto avoid colliding with such automobile, should its driver disregard such right of way • • • . ''

Switzer vs. Baker, et al., 160 N. W. (Iowa, 1916) 372:

Held--....The right oi way law ''does little more than put int<» the fo~ of ·a city ordinance the common law rul~ that while

I 6 Supreme. Court of A ppeais of Virginia.

pedestrians and driver :of moving vehicles have an equal right to use the public roads and crossings, each must exercise such right with· reasonable regard for the convenience and safety ·of others. If the la.'v recognizes a right' of precedence in the use of a crossing, it does not mean that the persons having such rig~t may loiter upon or obstruct the erossing .. e • =B ."'

Venghis vs. Nathanson, 127 .A. (N.J., 1925) 175, at 177 . •

''Of course, the statute giving· a pedestrian a.t a street cross-ing (in the absence of any m~nicipal regulatio~) the right of way over an automobile approaching such crossing at the same time, does not relieve him of the legal duty to use rea­sonable care t.o avoid colliding with such automobile should its driver disregard such right.',

2.. For convenience, we restate the second contention of counsel for the plaintiff: ·

, '' Tha.t this ca.se was controlled by the cases· of Core 'vs. Wil­helm, 124 Va.. 150; Th01nas vs. Metzendorf, 128 A. (N .. J .. ) 162, and Birch vs. Aberc·tombie, 138 P .. (Wash .. ) 1020." .

L~t us examine the cases relied on:

Core vs. Wilhelm, 124 Va. 150, 'vas a: case of a pede'strian leaving the side,,.,.alk and struck in the street by an automo­bile which he di.d not see when he left the walk although he looked in the direction frnm whence it came. The plaintiff testified there wa.s no car in the block 'vhen he looked but there was· in the ''other block''. Here the plaintiff took the pre­caution to loo:k two blocks. but Perritt, the· plaintiff, only looked "20 or 30 feet" (M:. R., 42).

Again, in the ca.se relied on, there was a. demurrer to 'the evidence 'vhieh disclosed affirmatively that it was night· and 'vas silent on whether the defendant had her lights burning. The defendant did not stop after sfriking the plaintiff until for<:.ed to do so by the policeman. The Court was influenced in its conclusion in that. the evidence was silent as to what precautions were taken after the plaintiff ''started to cross the street'' (which is not the fact in the case now under in· vestigation) and it was pointed out that "the failure to take

"'\Villiam S. Ifeindl v. Asa Perritt. 17

auch precautions was a. matter of defense, as to which the burden o.f proof was upon the defendant unless, etc. * * * . '' See page 156 of the. opinion.

The other two cases relied on are from the states of New Jersey and Washington, respectively. We quote from the opinions in each instance. Thus, in the Thom-as case it is said:

"The evidence tended to show that before· leaving the curb the plaintiff looked up and down ~Iarket Street and saw only one automobile, and he· waited for that to· pass ;/tha.t he then took two steps off the curb and looked again, both 'vays, a.nd .seeing no automobile he proceeded to cross the street (which was fifty or sixty feet wide) and had reached a point about fifteen feet from the opposite curh ·when he was suddenly confronted by the glare of the headlights of the defendant's automobile, whicb he had not seen before; * * * "

and in the Bu-rch ease :

"She testified that before leaving the curb on the 'vest side of the street she looked south on Jefferson and saw nothing, the street being perfectly clear for the distance of about a block; $ * * . " · ·

It is thus seen that the· precautions taken in ea.ch instanee 'vere much greater than in the present case·. Observations were made by the plaintiffs in both of the cases relied on for a block or more and in the· present case but '' 20 o-r 30 feet'' (1\L R., 42). Let us concede, if we must:, tha.t each case is in point. If they are·, the holding in each is contra.ry to that in various cases. we have cited in support of our contention that the plaintiff was g11ilty of contributory negligence· as a matter of la.w. It is significant that of the three ca.ses relied on by counsel, two· o.f them are from states other than our own, and if those decisions are in point, they are contrary to the holdings of this .Gourt.

Assigwme·nt of Error No. 2.

The Co-urt erred in refusing to give Instruction No. 2 for the defendant.

Instruction No. 2 is a.s follows (l\II. R., 2):

"The court instructs the jury that regardless of whether

. ··-··- --- --- --- ---------~-

1-8 Supreme Court of Appeals of Virginia.

you believe the defendant 'vas g11ilty of negligence or not; neyertheless the law imposes upon the plaintiff t.he duty to ex.ereise reasonable care in maintaining ·a lookout for his own safety, and in this case, regardl~ss of the question of negli­gence on the part of the defendant, if you believe the plaintiff endeavored to cross the street without looking for a.pproach-· ing- traffic, or that he did look and did not observe the near approach of the defendant, in each or either event the plaintiff is guilty of such contributory negligence as should bar his

· recovery, and in such event or events your verdict should bo in favQr of the defendant."

The .Court's attention was directed specifically to the two cases, a reac1ing of which will indicate the instruction should ha.ve been given. A reference to the instruction (M. R., 62) ~lOWS: ,

''The defendant offered the instruction as correctly stat­ing_ the law as applicaple to . the evidence of the case, and maintained that it had so been held in the case of Meade vs. 80ili!Yitders, 151 Va. 636, and Stephen Putney Shoe Company vs. Ormsby's Admr., 129 V a. 297. ''

The Court orally indicated 'vhen the instruction was of­fered that if it was given it would instruct the plaintiff out of ·Court. We agree with this and if the plaintiff was not in­struoted out of 'Ooturt the verdict should have been set aside and final judgment entered, as set forth in Assignment of Error No. 1. . The practice of instructing parties out of Court is no new one in this jurisdic.tion but has existed for yea.rs .. It should be done when under the foots as they appea.r in their most favorable light from the viewpoint of the plaintiff a case is made out upon which no recovery could be con­templated. The instruction embodies substantially the same wording a.s appea.r.s in both the Meade and Ormsby cases. 'rhus, in the case of Meade vs. S~ders, 151 Va.. 636, at 642, it was sui-it:: ·

~ ~

·~ ~ ~ . --~\\::~

'

.·.

l i !

•;:~,.

:=

'. ·. WilliamS. Heindl v. A.sa Perritt. 21

'' 'In other words, if he did look he was bound to see the truck, and was negligent as a IW,ttter of law in stepping in front of it; and if he did not look, his negligence as a matter of law is none the less apparent. t Virgima Railway and Power Compatl1J vs. Boltz, 122 Va .. 649, 95 18. E. 467; Hendry vs. Vir­ginia Railway and Power Company, 130 Va. 282, 107 S. E. 715. ,, .

The very next paragraph to tho cne just quoted is :

"The facts presented by this record fail to make out a case for the consideration of a jury, and the learned presiding judge at the trial could very propStrly have refused to giv-e any instruction for the plaintiff; by hypothetically stating the facts of the ca.se as proved, instructed the .iu/ry that if they believed them, to find for the defenda;nt, or at the instance of defendant might have stricken out the plaintiffts · evidence. Davis vs. Rogers, 139 V a. 618, 124 S. ~- 408. '' (Italics ours.)

In concluding this assignment of error, it is re-spectfully submitted that whether the plaintiff looked a block or more and did not see, or did not look, or looked only the distance of '' 20 or 30 feet'', he was in any or all events guilty of con­~ributory negligence as should bar his right of recovery.

CONCLUSION.

In consideration of the above, your petitioner respectfully submits that the judgment of the Law and Equity ·Court of the City of Riehmond, Virginia., is wrong; that the defendant be

. granted a Writ of Error and Supersedeas, and that the said judgment be reversed.and judgment entered by this Honorable Court in favor of the defendant.

Respoo~fully submitted,

WILLIAM S. HEINDL,

By SINNOTT, MAY & LEAMAN, J. A. GOBEL,

Counsel.

We S. L. Sinnott and John G: May, Jr., Attorneys prac­ticing' in the Court of Appeals of Virginia, do certify that,

22. Supreme Court of .Appe~Is of Virginia.

in ou~ opinion, the judgment of the La.,\r and Equity Court of the ·C1ty of Richmond, Virginia, in the ,action at law wherein Asa Perritt was plaintiff and WilliamS. Heindl was defend­ant, rende-red on the 12th day of January,. 1931, a transcript of the record (and orignal exhibits) of whieh is attached herewith, is wrong and should be reviewed and reversed by. the Supreme Court of Appeals of Virginia.

Given npder our hands this 24thcJ_ay of February, 1931. ·

l{eceived F~brnary 24.. 1931.

S. L. SINNOTT," JOHN G. MAY, JR.

H. S. J.

Writ of error and supersedeas awa.rded. Bond $6,000.00~

March 20, 1931. - ../, . ~ ~ . .:... . , ·- -.- _.;

Virginia:

In the Law & Equity Court of the City of Richmond .

.A. sa Perritt, Plaintiff, vs.

"'illiam S. Heindl, Defendant.

NOTE OF ARGU~IENT FOR PLAINTIF'F ON J\1:0TION TO SET ASIDE THE· VERDICT.

!! In the memorandum nled by the defendant, the defendant

hases his contention that the verdict should he set aside en­tirely upon the claim that the plaintiff':s testimony is sufficient to convict him of contributory negligence as a matter of law. 'rhe prima.ry negligence of the defendant seems to be con­ceded. In support of defendant's contention several Virginia -cases are cited, but plaintiff .submits that none of these cases are in point.

In the instant case the evidence conclusively establishes the fact that the· plaintiff looked south on Harrison Street just afte:~; 'he had turned around the front of the street car. He claims· tha.t at that time he sa.,,.,. nothing in motion south of Grace Street, and that he then proceeded aP.ross with his attention fixed on an automobile which was coming west qn

William S. Heindl v. Asa Perritt. 23 .

Graee Street. This automobile passed the intersection a.s plaintiff 1vas about entering the northbound car track, and he was struck by the frot!-t of defendant's automobile as he reaohed the eastern rail of this car track. It will be seen from the diagram filed in evidence that plaintiff, after ho rea.ched the front of the, street car, had only 17 or 18 feet to travel until he reached a point of safety.

In the case, of 1lleade vs. Barunde-rs, 151 Va. 636, cited by the defendant, the Court was by no means certain that the plaintiff ever looked before he stepped from the eurbing. The Court remarked t.hat from the plaintiff~s testimony it was quite apparent that he had no kno,vledge of how_ the accident occurred, and then went on to lay stress upon the testimony o.f the witness Nlanldn, who testified that the plain­tiff never looked, but that he stepped off of the sidewalk and ran squarely into the side of defendant's oor.

. . In the oase of Stephen Pu.tney Shoe Company vs. Ott·msby

Ad1nr., 129 Va. 297, cited in Meade vs. Saunders, it was like· wise very uncertain that the plaintiff's decedent looked before he stepped from the curbing. This also 'vas another case in which the pedestrian walked into the side of an approaching auto·mobile, it having been shown that Ormsby ·was struck by the side of the right front fender of defendant's car.

It will be recalled also that the accident involved in both of the above cases occurred before the passage of the Act giving pedestrians the right of way over vehicles a.t regular street crossings, this Act having first been approved in 1926.

It is submitted that the case of Jones vs. Power Co1npany, 153 Va .. 704, has no application, for the reason that this case involved a oollision between an automobile and a street car on the -Power Company's right of way. Nor does the case of Gt·een vs. Ruffi'Jt, 141 Va. 6'28, apply, because no question of the "last clear chance" doctrine was raised in the case at bar.

"\Ve submit that the instant case should be goven1ed by the principles of Co-re vs. JTlilhe/m,, 124 Va. 150. In this ca.se it

. appeared tha.t the plaintiff looked just as he sta.rted across the street, and the way appeared-clear. What, if any, further precautions, he took for his safety did not affirmatively ap­pear from the evidenc.e-. He was struck by the front of the defendant's automohile a .shor.t distance from the side of the street which he was attemJ;>ting to reach. Judge· Burks, in his

24 Supreme Court of Appeals of Virginia.

· Qpinion, ~tated th~t the rule of "look and listen" applicable to grade crossings, of steam railroads is not applicable to street crossings; that the measure of duty imposed upon a pe­destrian ·about to, cross a city street, where moto-r vehicles of all kinds are frequently passing, is that he shall use such care as a person of ordinary prudence would use under like cir­cumstances, and whether or not he did use such care is or- · dina.rily a question for the jury·; tl1at he cannot, of course, blindly o·r negligently expose himself to danger, but he is not required to be continuously looking and listening to ascertain if automobiles are approaching, under penalty that upon failure to do so, if he is injured, his negligence must be con­clusively presumed.. Judge Burks cited with approval the case of Minor vs. Mapes, 102 .Ark. 351, 144 'S .. W. 219, in which the facts were very similar to those in the case at bar.

The case of Core vs. Wilhelm was al~o decided prior to the passage o.f the Act giving pedestrians the right of way at street crossings, and at a time when pedestrians and vehicles had equal rights in the use ·of the .streets. The principles of this case, then, should. a.pply so much the more strongly under present conditions. There are two cases from foreign juris­dictions in which the facts were almost identical with those of the case at bar, .and in both of these cases the question of the plaintiff's contributory neg·ligence was allowed to go to the jury. These cases are:

Thomas vs. Metzendorf (N. J.), 128 Atl. 163. Burch vs. A~ercrombie (Wash.), 138 Pacific 1020.

,

In conclusion we .submit that the action of the ·Court in al­lowing the case to go to the jury was entirely proper.- · The jury considered that the plaintiff had taken the same pre­c.autions for his safety that an ordinary prudent and cautious person would have taken under the same or ·similar circum­~:~tanees. That these precautions, on aooount of some unfore­seen circumstance, were ine:ffeclive, should not, we contend, be considered on this motion. We respectfully submit that :final judgment should be entered on the verdict of the jury ..

Respectfully suhl¢tted,

• • • • • • • • • • • • • .• • • • • • • • • • • • • • r

Counsel for Plaintiff.

("

\

William S. Heindl v. Asa P-erritt. 25

VIRGINIA:

Pleas before- the Honorable Robt. N. PQllard, Judge of the Law and Equity ·Court of the City of Riclun.ond, held for the ·said City at the Courtroom thereof in the ·City Hall on the 31st day of January, 1931. ·

Be it remembered that heretofore, to-wit: In the Cl-erk's. Office of the Law and Eq¢ty Court of ~hmond, on the

· 1st day of July, 1930, came Asa Perritt, by Counsel, and filed his NQtice of lVIotion for Judgment ag·alinst William S. Heindl, which No·tiee of Motion f<)l~ Judgment is in the words and fig:nres followingJ to-wit·:

c 'Virginia:

In the Law & Equity Court of the ·City o·f Richmond.. ·

Asa Perritt, Plaintiff, vs ..

1Villiam S. Heindl, Defendant.

NOTICE OF MOTION FOR JUDGMENT,. . 'J·

To: William S. Heindl, !2505 G-rove Av~nue ..

· TAKE NOTICE that I shall, on the 15th day oi July, 1930, a.t 10 o 'c1ock A. M., or as. ·soon thereaf.ter as .counsel may be l1eard, move the La:w & Equity Court of the City of Richmond at the courtroom thereo.f in the ·City Hall, Richmond, Virginia, for a judgment against you in the sum of $20,000.00, whieh amount is due to me as damages for ·injuries sustained by me and caused by your negligence a.s hereinbelo·w set forth:

I allege that on January 24, 1930, between the hours of 7 o'-clock and 8 o'clook in the evening of that day,

page 2 } I was walking in an ea.sterly dirootion across the northern crosswalk of H.arrison Street where Bar­

rison Street intersects Grace Street in the City of Richmond a.nd that I was using due and proper care to protect myself

- from being struck by Vehicles while SO doing; that at the S·ame time you were driving a Bui-ck automobile in a northerly di­rection along nB~rrison Street ·approaching the intersection· of Graee Street and that while so operating said Buiek auto­mobile you were guilty of negligence, in that y~u (a) failed to

26 Supreme Court of ·Appe.als of Virginia.

exercise a. reasonable and proper lookout, (b) failed to keep your said automobile under reasonable and proper control '(c) .operated same at an excessive rate of speed under all of the facts and circumstance~ eocisting at the time (d) failed to ha.ve your automobile equipped 'vith the proper appliances to enable it to be stopped within a rea.Sonable distance (e) failed to have the said automobile equipped with proper light. ing devices, and (f) failed to observe the statutes of Virginia regulating, governing and controlling the operation of auto­mobiles; and

I fnrther allege that in consequence of and as the proxi­mate result of your said several a.cts of negligence above se.t forth, the front of your said aittomohile violently collided 'vith a.nd ran into me as· I was 'valld.ng across Harrison ·street as a:foresaid, when I had reached a point nea.rly over the eastern rail of the northbound traek of the Clay Street car­Iine, causing me to be knocked down in the street and inflicting upon me severe injuries, to-wit: a. broken right arm, a ,num­ber of hroken ribs, an injury to the spine and various cuts, bruises and abrasians over my entire body, on account of which I 'vas forced to expend large su~s for ho::;pital, medical and doctors bills, to-wit: the sum of$ ........ , and to lose a ]ong- period of time from my work sustaining- a loss on tha.t

aooount of$ ........ , and causing me also to 'tinder-page 3 ~ go much physical pain and suffering and mental

anguish all to my damage in the sum of $20,000.00, which amount I allege is due to me from you because of your negligence as hereinbefore set forth.

l : ASA PER.RITT, By Counsel.

\V~f. C. COULBOURN, Counsel.

page 4 ·~ And at another day, to-wit: At a Law and Equity, Court of the :City ~of Richmond, held the 15th day

of July, 1930.

· This da.y came the plaintiff and defendant by counsel and on the motion of the plaintiff by counsel it is order:ed that this ease be docketed and continued.

· And at another day, to-wit: At a La.w and Equity Court of the City of Richmond, held the 1st day of December, 1930. ' .

-----

William S. Heindl v. A~a Perritt 27

This day came again the plaintiff and ·defendant by counsel and thereupon the defendant by leave of Court filed herein a statement of the grounds of his defense to this action and statement of negligence and contributory neglig·ence on the part of the plaintiff and fi·led a plea o.f ''not g"Uilty'' and put himself upon the Country and the plaintiff. like·wise.

·And thereupon came a jury, to-wit: M. J. Barr, Oscar J. Adams, J. S. Wilson, L. D. Utley, F .. V. Berry, W. B. At­kinson and A. H. Allen, being S\VO·rn well and truly to try the issue joined in this ease and having heard the evidence and arguments of counsel were sent out of ·Court to consult of a verdict and after some time returned into Court with a. ver­dic.t in t.he words and figures following, to-wit : "We the jury on the issue joined nnd for the plaintiff and as.sess his damages at Five Thousand Dolla.rs ($5,000.00)." There-1;1pon the defendant moved the .court to set aside the said verdict as contrary to the law and the evidence and to enter up final judgment for the defendant because the eviednce dis­closes contributory negligence on the part of the plaintiff a.s

a matter of law, which motion the Court continued page 5 } for argument to be heard thereon. .

- Virginia:

· In the Law and Equity Court of the City of R-ichmond.

Asa Perritt, Plaintiff, vs.

1Villiam S. Heindl, Defendant.

GliOUNDS O:B., DEFENS'E AND STATE~IENT OF NEG­LIGENCE AND CONTRIBUTORY NEGLIGENCE ON THE PART OF THE PLAINTI:b,F.

Comes now the defendant and for his grounds of defense and statement of negligence and contributory negligence on the part of the plaintiff, sa.ys:

1. That he denies each and every material alleg~a.tion of the plaintiff's notice of motion.

2. That he wa.s g"Uilty of no aet or acts of negligence which proximately c:aused the injuries -complained of.

·3. ·That without,admitting, but specifically denying the de­fendant was guilty of any negligence, nevertheless says that

------;-----,

------- - -~- --

28 Supreme Court of Appeals of Virginia.

the plaintiff was guilty of negligence and/or contributory negligence which proximately caused or e·fficient~y contributed to' cause his injuries in that he

(a) Crossed the street in front of. the automobile without· ·ex.ercising a reasonabJe lookout for his own safety;

(b) Either looked and saw the a-utomobile which came in collision with him .and w.alked in. its path regardless of the ex­isting· danger, or did not look at all;

(c) Did not exercise reasonable care generally. for his own safety in crossing the street.

WII.~LIAM S. HEINDL, .

By SINNOTT, MAY & LEAMAN, Counsel.

page o ~ And at another day, to-wit: At a Law and Equity Court of the City of Richmond, on the 12th day

of January, 1931. I

This da.y caine again the plaitniff and defendant by coun­sel and the motion of the defendant to set aside the verdict of the jury and to e.nter final judgment in favor of the defend­ant having been argued and the Court now being advised of its judgment to be entered herein doth overrule the said mo­tion, to which action of the Court the defendant by counsel, excepted.

Therefore it is eonsi.dered by the Court that the plaintiff recover against the defendant the sum of Five thousand dol­lars with interest thereon to be computed a.fter the rate of six per centum per annum from the first day of December, 1930, until paid and his costs by him .about his suit in this behalf expended.

Memorandum: Upon the trial of this case ·the defendant by counsel excepted to sundry rulings and opinions of the Court given against him and on his. motion leave is hereby given ·said defendant to file biUs or certificates of exception herein a.t ·any time within sixty days from this date a.s· pre-seribed by law. '

Upon the further motion of the defendant by counsel it is ordered tha.t the judgment this d.ay rendered in this case be

Williams~ lleindl v. Asa Perritt. 29

suspended for a perioq of ninety days fr.om this dat'e in order io enable the said defendant to apply for a writ of error and .supersedeas, upon condition ·th:a.t said defendant or some one for him enter into bond befor-e the •Cler.k of this ·Court in the· penalty of six fuousaild doHars with surety to be app.:roved · by said Clerk an.d conditioned according to law within .ten days from this date.

page 7} And a.t.another day, to-wit: At a Law and Equity ·Court of the·~City of Richmond, held the 31st day

of January, 1931.

This day eame again the plaintiff and defendant by. coun~ sel, .and thereupon the defendant tendered to ·the C~urt three Certificates of Exceptions and 11 Stipula.tion between coun­sel in reference to the· exhibits in evidence in this case, which bills of exceptions were received by the Court, signed, sealed and enrolled and ordered to be made a par.t of the record, whieh is accordingly done; and -the said Stipulation between counsel ordered to be filed and likewise made a part of the record· in tbis ca.se, which is ·accordingly done.

page 8 } Virginia:

In the.Law and Equity Court of the City of Richmond.

Asa Perritt, Plaintiff, vs. .

. ' 1Villiam S. Heindl, Defendant.

CERTIFWATES OF EXCEPTIONS.

CERTIFICATE NO. 1.

rrhe following evidence on behalf of the phintiff, and of the defendant, respectively, as hereinafter denoted,, is the evidence, and all the evidence, whicli was intr.oduced at the trial of this action:

page 9 } Virginia:

In ·the La.w and Equity Court of the City of Richmond.

Asa Perritt, Complainant, vs. '

vVilliam S. Heindl, Defendant.

Appearances: 1\{essrs. W. A. Coulbourn and Ralph. C.

30 Supreme Court of .Appeals of Virginia.-

iBethel, Counsel for Plaintiff. 1\fr~ J. G. ~lay~ of Sinnott, May & Leaman, Counsel f.or J?efendant.. ·

December 1st, 1930.

pag·e 10 ~ EVIDENCE FOR PLAINTIFF.

DR. ANGUS R. NICHOLS, being first duly s'\\•orn; testified as follows:

DIRECT EXAl\fiNATION ..

Bv ~Ir. Coulburn: ·Q. You·r name is Dr. Angvs R. Nichols¥ · A. Yes, sir. · · Q. Where do you practice? A. You mean the number· of mv ofii.ce t Q. Yest . w

A. 211 West Grace Street, Richmond, Va. Q. Are you associat.ed in any way with the St. Luke's Ifos­

pital¥ . A. No; I am not.

Q. Dr. Nichols, were yon called upon to treat 1Ir. Asa Per-ritt? · · ·

A. Yes, sir. Q. At what time w·ere you called upon to treat himf A. I 'vas called on February 11th. Q. Where was he at that time?· A. At St. Luke's Hospital. Q. Wha.t did you find to be his condition a.t the time you

. were called upon to treat him? page 11 ~ A. When I saw him he had been injured. He was

in bed with a brace on his arm, his· right arm, I think it wa.s; .or 'va.s it the left-I don't remember-auyho'v he had a fracture, and Dr. Faulkner wa.s on this case in the beginning; J a.nua.ry 24th was the date of the accident, I think. I was not called to treat him at the time of the accident. He had become very much debilitated. Hi~s. heart wa.s very weak at. the time; his naHs were blue, and Dr. Faulkner advised hi.m: to call m his family physician. I being his family physi­cian, naturally he called on me. I treated him off and· on to l\Iarch 30th, I think, after which he- came to the office several times. I did not treat him for the injury, but this was are-sult of the injury. • ·

Q. You .are not an orthopedic doctor1 A.· N·o, I ·am just ·ari. old family doctor.

William S. Heindl v. Asa Perritt.

Q. General prac.ticionert A. Yes, sir.

31

Q.. At the time you went to see 1\ir. Perritt he had been in the hospital, had he not, for at least a month!

A. No·; I think he was injured on Janua1·y 24th and I went to see him first on February 11th. I would not be certain about the time of t.he accident, but I think it was J anua.ry

· 24th; but I know I saw him on February 11th page 12 ~ my firs.t visit.

Q. How long have you been praeticing medicine? · A. Thirty-six years.

Q. Would you state that the gene·ral condition that you noted at the time that you saw ~fr. Perritt could have been attributed to the ac.cident which he .suffered and the subse­quent confinement in the hospital1

By l\£r. 1\tlay: I object to the question in the form it is asked. I don't think it is de·finite enough to sa.y could it be attributed to certain things; that is a mere possibility.

By the ~Court: I don't think the witness has yet testified 'vhat he· treated the plaintiff for; nor did he testify when he saw him before the accident. The objection is sustained to the question in tha.t form. I ·can see ho·w it might he asked and might be admitted if he were asked certain questions lead~ ing up to the question which has been propounded.

By Mr. Coulbourn : Exception noted.

Q. Dr. Nichols, how long had you been 1\ir. Perritt's physi.­JCian?

A.. About .five years prior to the accident. Q. Do you recall when was the last time you ·saw him prior

to January 24th, .or prior to February 11th, 1930"? page 13 ~ A. Ptofessionally, do you mean 1

Q. Yes1 A. ~£r. Perritt had never been really a ·very delicate man.

He looked delicate, but I don't think he ever co~sulted me professiona]ly prior to this accident. lie was able to get around and do his work. Whereas he was tliin, he was prac~ tically in g-ood shape. ·

Q. Then, as a result of your prior knowledge of Mr. Per­titt, could you state professionally that in your opinion the accident was the cause· of the condition in 'vhieh you found him on February 11th 1 .

A. I think so; I am very positive that the· aecident had everything to do with this degenerative p·rocess going on in his body, and that his weakened heart action and debili-

32 Supreme Court of Appeals of Virginia.

tated condition were due to the accident; be~use he was able prior to that time to do his work. He looked like he was about to pass in his ehecks ·when I .saw him -on February 11th.

Q. How long was he in your care¥ · A. He was in my care and Dr. Simms, my assistant's care

from February 11th on-I think Dr. Simms saw him two weeks after I saw him last; but he sa'v him about a different

. condition-until about 1\'Ia.reh 30th. He came to the office a few times .a:fter tha.t. He was up and going around, but

still very much incapacitated. page 14 ~ QL What was your bill, l)octor, for your treat-

ment of Mr. Perritt¥ A. I don't recall that, e:xact.ly; I think about $45 or $46. Q .. Has that bill been paid i A. No, sir.

By Mr. ~fay: I move that that answer be stricken out, your :Honor. Whether the bill ha.s been paid or ::p.ot; all the lia­bility to pay the bill is there, and it is immaterial whether paid or not. ·

By Mr. Coulbourn: I withdraw the question.

Q. I believed you stated, Doetor, that your treatment of Mr. Perritt terminated on a.bout March 30th'

A. Ma.rch 30th or early in April, some time along in there.

The witness stood aside.

page 15 ~ DR. R. F. SIMMS, being first duly sworn, testified as follows:

DIRECT EXAMINATION.

Bv Mr. ·Coulbourn: ·Q. Your name is· D·r. R. F. SimmsY A. Yes, sir. · Q .. What is your position, Doctor, I mean with reference to

Dr. Nichols? A. I am associated with him. ,_ Q. Will you state whether or not you were called in to trea.t

.lVIr. Asa Perritt, who is the plaintiff in this case, and, if so, at about what timeY

A. R-ather than being oo.lled, I was sent by Dr. Nichols to take ea.re of an ulcer -that had developed -on his -shoulder as a result -of the splint tha.t he was wearing. on aooount of a 1Jreak in his a~Tm. I did not see him until several weeks after

William S. Heindl v. Asa P~rritt. 33

the accident. As a. matter of foot, I don't know the date of the accident, ·or any of the circumstances leading ·up tQt the accident. This ulcer was. the result Df the piece of apparatus {the ·type of which I do not know) whicll he; had ·On his shoul­der to take -care ()f the break.

Q. What sort of apparatus, in the language of the layman, was it. Was it a splint, or what·7 ·

page 16 } .A. I think it was a splint. ·I did not see the ap-paratus. It had been taken off. From what I can

gather it was a piece of apparatus, with a ring on it, with something like a crutch under it. The pressure ()f this ring on· the arm I think ha.d caused the ulcer.. I did not see the piece of apparatus ..

·Q. How long did you treat Mr. Perritt for that ulcerf A. Until March 30th. Q. Was that the only service that you performed· ior M·r~ ·

Perritt? . A. That was the only service that I performed for him,

treating that uleer .daily. Q. Wha.t was your bill f A. $123, I think.

The witness stood aside.

page 17} ·ASA PERR.ITT, . being first duly sworn, testified as follows:

DIRECT EXAMINATION ..

By Mr. Coulbourn: Q. You are Mr. Asa Perritt, the plaintiff in thls cas~t A. Yes, sir. . Q. How old are you, Mr. Perritt? . . A. I am 62 years old. Q. Where were y:ou on January 24th of this year, between 7

and 8 o'clook in the .evening! A. I was on a Clay· Street car, going south. I caught a

Clay Street ear at Hanc~k and ·Clay Str~ets. Q .. At Hancock and ·Clay .Street you caught it? A. Yes, sir, and came around to Harrison and Grace, and

got off the street car at Harrison and Grac~, and when I got off I walked around in front of the street ear and on ooross the street"; but, as I walked around, I looked south on Har· rison to see if there was .any car moving, ·street car or auto­mobile. that would endanger me in going across, and I saw no car moving near the intersection, and I proceeded aeross.

34 Supreme·_ Court of Appeals of Virginia.

As I looked up Grace· Street I saw one automobile going west · on Grace S.treet, running pretty fast, and I watched

page 18 ~ that car until it struek the intersection. As it struck the intersection it continued west and I made

no halt; but as it passed a car pulled up on me, sounded like an airplane, is was roaring so. It wa.s right on me. I whirled my hack and made a.n attempt to jump, and did jump, I guess. I must have been in the air or arising from the ground when the car struck me and knocked me ahead several feet and then rolled on to me. I fell down in a sitting position, in a kind of wad, and I go-t my right arm on the, ground, to brace my­self up, to keep from falling over. As I did so the bumper struck me on the right arm, in this shoulder (indicating) and broke it in and I caught the bumper with my left hand and my hand went over and I locked my arm ·on the bumper; t·hat dragged me until the car ·stopped, about four or five feet, I guess it was tha.t far when the car came to a. stand­still. l\{r." Heindl jumped out his car and came around and picked me up and then grabbed me in his arms a.nd started walking with me and said he would take me to the hospitaL I asked him not to take me to the hospital. He said he would have to take me to the hospital; I 'vas hurt bad and I would have to go to the hospital. I told him I did not want to go to the, hospital; I w-as not able'. He said he would-

page 19 ~ By :hl.Lr. liay (interposing) : I object to this tes-timony. ~[r. :Coulbourn has just tun1ed the 'vit­

)ness loose and I "\vould ask that ·he ask specific questions. I t.hink some of the testimony he is giving is objectionable. Your Honor will understand that this suit is not brought on con­tract, but in tort. The action is in tort, and he is evidently trying to show a contract of Mr. Heindl's to do something on his behalf. ·

By the ·Court: I can't rule on the evidence, whether the evidence is admissible until the witness testifies. ·

By l\ir. l\fa.y: I except to your Honor's ruling. I think he had already stated enough to indicate to your lionor what his line of testimony was ; in fact, I think he had completed it.

By J\llr. Coulburn: Q. l\fr. Perritt, I think you have given a general description

of the accident. Answer my questions, so ·we can get the de­tails of it straight. Will you state to the jury whether or not this is a picture of the scene of the accident t

A. Yes, that is a picture of it.

WilliamS. Heindl v. ABa Perritt. 35

N ote.-The picture is introduced by stipulation of counsel as "Ex. A. P. No .. 1".

By Mr. Couldburn: I present to the gentlemen of the jury this. picture of the scene of the accident at Har- ·

page 20 ~ rison and Grace Streets. . . By Mr. Ma.y: I might say, by way of description

of it,. .that the street car is pointed south, as has been testified in this ease.

By Mr. C.ouldbourn: . Q. Mr. Perritt,. will you take that picture so the jury can see it and describe your movements from the time you got off the street car?-- A. I got off on this side and there were s-ome passengers getting on a.s I got off. I wall{ed right around and eame over between the two rails there of the northbound track. '!'here is where this ear came, going north, _and struck me as I was about the last rail on the northbound traek. I had walked across in a medium gait, while there. were ladies getting on there, and this street car was standing there when Mr. Heindl picked me up and broug.ht me around there; it had not ·moved. He had finished taking the passengers ·on, and that is where I \Vas, right here (indicating) and I was knocked down several feet and dragged on this track (indicating) by the automobile .before it came to a standstill.

(~ Mr. Perritt, state w·hether or not you walked across that street in a straight_ direction, or whether you devia.ted to one side or the other?

A. I came right across on the edge. of the in­pag·e 21 } t~rsection -of the street. The street car was stopped

at the edge of the sidewalk. I got off and walked around this street car and walked straight across to the east side of Harrison. That is where I was making for, that cor­ner, to transfer to the bus. I was going ac.ross to eateh the bus, to_ go. to the West End. That is where I was eaug·ht, right tJJ.e,re, by the car going· north, about -the middle of that northbound car track. It seemed he wa.s running on that line, the northbound rails, and that he was going north.

Q. At that time were there any cars parked along Harrison Street, -so far as you could see' . A. There was one car parked against that confectionery,

headed towards Grace; but it was up against the curb, and there was a confectionery on the other corner. -

36 Supreme Court of Appeals of Virginia. ,._

By Mr. May: Q. Where was the car that was parked-point it out on

the picture? A. It was over on this side, over here (indicating). Q. On the southeast c.orner? A. On the southeast corner of Harrison.

By 1\fr. Coulborun : Q. That is Paul's confectionery, is it notY

.·

A. I don't remember what confectionery it is. There is a confectionery on both corners.

page 22 ~ Q. The ear you saw was over on this corner · here, on the southeast corner?

A. Yes; there were cars parked on the other side. Q. Mr. Perritt, where were you when yon saw this alltomo­

bile that was going west on Grace StreetY A. Just as I turned around the street car, I looked across

to my right, on Harrison; then up Grace, a.nd there was a car coming, ,about 30 or 40 feet from the intersection, headed west.

By M~. May: Your Honor, I have a motion I wish to make in the absence of the jury.

By the Court-: The jury will retire.

Jury out.

By Mr. May: Your Honor, in this witness's general testi­:rnony a little while ago he stated he did not have the money to pay his hospital expenses. That is evidence of his :finan­dal status which should not have been admitted, I submit, and I think it cannot now be cured by an instntction to disregard it, and I therefore ask the court to declare a mistrial on that· account. ·

By the Court: The motion· is overruled.

By Mr. May: I not~ an exception.

Jury returns. i f!

Bv 1\fr. Coulbourn: · Q. Mr. Perritt, is this a diagram of the inter-

page 23 ~ section of Harrison and Grace Streets Y A. Yes, sir.

By Mr. Conlbourn: I state to the court that this diagram

I'

Wi~liam S. H~indl y. Asa Perritt. 3'1

is also introduced by stipulation of counsel, and filed, marked HExhibit A. P. No. 2". ·

Q. 1\ir. Pi7rritt, what is the width of Harrison Street there7 A. 30 feet. 'Q. What is the width of Grace .Street? A. 39 feet. Q. Mr. Perritt, you were ~rossing from which corner to

which corner. This is Ht. Luke's Hospital on this corner here (indicating).. This is loo·king east on Graoo Street (iudieat­ing) f

A. I was crossing fr.om this CQorner here across here (in-dieating).. . ,

Q. These represent the eat tra~ks (indicating), do they not' · A. Yes, sir.

Q. On whieh car tracks were, you when you were struck? A. I wa.s right in this northbound track, near the outside

rail. I fell on the outside rail. That is where I was picked up.

Q. :Mr. Perritt, immediately after the accident, I think you said that 1Yir. Heindl came to you and picked you up, that is, after he had brought his car t() a ste>p t

A. Yes, sir. page 24 } Q. What statement did he make to . you at the

time witl1 regard to the accident 7 A. When he picked me' up· I asked him to take me home, or

would not he ta.ke me home. IIe s·aid he was going to place me in the hospital; that I was hurt very bad, and that he wanted something done for me at once.

Q. Don't .state what you told him, but what did he tell you after thatY

A. He told me that he would be responsible for the expenses of the hospital .

By Mr. ~Iay: If your Honor pleas~, tha.t is that same fea­ture again. I object to tha.t answer on the gr-ound that we are not suing on this agreement. It is not based on .an im­plied eontraet, and I think that line· of testimony in a tort case prejudices the interests of our client, and th~ ~nly way we see to protect ourselves is to ask for a mistrial.

By Mr. Coulbounr: Your Honor, I t.ake the position that statements made on the ground are pa.rt of the res gestae, and are admissible for what they are worth.

By the Court: The motion is overruled. The eourt will

38 Supreme Court of Appe·als: of Virginia.

at the proper time tell the jury what consideratian they can give to tha.t testimony.

By Mr. May: I note an exception.

page 25 f Qr So, you went to St. Luke's Hospital, did you, Mr. Perritt!

.A. Yes, sir. Q. How long did you remain in the hospital¥ ·A. Four weeks. Q. What was your bill while you were in the hospital f A. The entire bill?

.. Q. Just the hospital bill, itself. Do- you recall? I have something you can use to refresh your memory, if you wish,. a statement th~t you gave me~

.A. $346.35. . Q. In addition to that were nurses employed .for you f · A. Yes, sir. Q. What was the amount of the bill f,or the nurses~ A. It '\Vas $32. Q. Did you have to have medicine at that time f A. I did .. Q. What was the bill for the medicine f A. It was $25. Q. Mr. Perritt, for whom were yon working at the time

.of your accident Y A. I was working for the Union Life. Q. In wha.t capacity!· A .. I was an agent. Q·. As an agent what were your duties 1

A. My duties were building a debit, writing in­page ·26 ~ surance and collecting.

Q. Is that what is known as industrial insurance f A. That is what is known as industrial insurance. Q. In order to :w·rite insurance and collect. premiu~s what

is it necescsary to do f A. We have to make our rounds to see each member each

week, then we have to knock on doors each week regularly to write business. That is the way I do·. Some ha:ve other rules to wor-k canvassing. ' · Q. ·Confine yourself to your duties'? ,

A. My duty wa.s collecting and writing insurance. . -· Q. ·Did this duty, or did it not, require· you to be on your

feet very much during the day~ . A. Yes, and part of the night. I had to make caiis to see

service women and men, working late to :see the parties to collect and write business. I do more writing during the night

William S. Heindl v . .Asa Perritt. 39

than I do during the day. I work late in the afternoon and into the night ~everal hours, writing business. . Q. How long was it after your accident that you began. doing this work again Y -

A .. I started back about two months ago, doing a little. I was not able to make it regular, but I did some.

Q. Are your earnings, or are they not, dependent on the . ·amount of writing and the amount of collections

page 27 ~ that you do Y A. Yes, entirely on that. My earnings depend

entirely on what I do and 'how. much I do. I work on a per cent.

Q. Mr. Perritt, what is 'the condition of your arm a.t the present time, so far as your use of it is concerned Y

A. I can't use it for anything more than just a. little writ~ ing, or something like that. I cannot lift anything, or cut or chop or knock anything at all, nor can't raise it up. I don't ~ven feed myself with it. It is a strain to get it up and hurts to raise it: to my mouth. I can raise it to my mouth, but it is a strain. I cannot do anything in the way o.f waiting on my-

. self, except 'Vith my left hand. I can hold my pencil in my finger and do a little 'vriting. I cannot close those _fingers. · Q. Show that to the juryY

jl.. That is as close a.s I .can get ·those fingers together (il~ lustra.ting). This hand on this side here (indicating) is p_ara­lyzed; feels like it is asleep all the time, this side and up this arm and part of the shoulder, and it affects this side in my hip. They feel like they are asleep all the time.

Bv Juror: "Q. Can you put your hand up there to your shoulder at

alU A. I can put it up there, but it is a strain; but I ca.nnot. use

it for eating~ I ha~e to eat with. my left hand and do every­thing else in the way of waiting on myself with my

pnge 28 ~ left hand. ·

By J\IIr. Coulbourn : Q. How about your back; do you suffer any from your·

baek? A. When I am on·my feet for an hour I give out in m)r

hack, across the lower pa.rt of my spine. In falling down tha.t night I injured the low~r part of my spine·. Those ribs were boken right under there, several o.f my libs were broken. It struck me from my shoulder down to my hip ·and' the ribg were broken in there.

--- . ---------~~ :;-- -·-

40 Sup_reme Court of Appeals of Virginia.

By Mr. Coulbourn : If your Honor please, a.t this point, as 1\fr. Perritt is somewhat overcome from the strain of the examination and 1\fr. 1\fay ··waives cross examination of ].fr. Perritt for a. short while, I ·will ask Mr. Perritt to stand nside for the present, and we. will proeeed to the examination of Dr. Faulkner.

The witness stood aside.

page 29 ~ DR. D. 1\L FATJLI{NER, being first duly sworn, testified as follows:

DIRECT EXAMINATION.

By 1\Ir. Coulbourn: Q. Your name is Dr. D. l\L Faulkner? A. Yes, sir. Q. Do you specialize in any particular branch of medicine,

or are you a general practcionerf A. I specialize. Q. In what branch? A. In orthopedic surgery, surgery of the bones and joints. Q. Will you sta.te to the jury the school from which you

. graduated; your year of graduation and your experience in that branch of medicine in which you specialize f

A. I graduated from the University of Virginia in 1918 and since 1921 I have been doing this special line of medicine or surgery. I spent about two and a half years in N e'v York in that line and since that time have been here, associated witl1 Dr. W. T. Graham. Since 1924 I l1ave been· with him.

Q. Doctor, were you called to trea.t l\fr. Asa Perritt on or about June 24, 19301 ·

A. Yes, on J a.nuary 24th, on that day I was called to the St. Luke's Ilospital to trea.t him.

pa.ge 30 ~ Q. Will you state to the jury wha.t condition you found Mr. Perrilf:t in at the time you went to see

bimf A. I saw 1Yir. Perritt about an hour, or an hour and a half,.

after he had been brought to the hospital, I suppose. At that time l1e ·wa.s suffering a good deal from the shock of the acci­dent., and he had evidently had a break in the upper right a.rm; also in addition to that he had some scratches and bruises on his body, and I think on hi.s right knee. Then, he was quite sore over the right side of his chest and in the back, where the hip joins on the backbone. I was certain that he

WilliamS. H~indl v. Asa Perritt. 4t

llad a broken upper arm. and that probably he had s-ome broken ribs. He wa.s perfootly conscious at that time.

q .. lYhat did _you do a.s the result of your preliminary ex-anunation7

A. ·We had an X-ra.y taken .as. soon as possible. Q. What did you discoverf A. Discovered tha.t he had a break in his upper right arm,_

betweenthe ·shoulder and elbow, and one rib broken and ap­parently there 'vere one or two oth-er breaks not in the nos, but in the cartilag·e there, whieh the X-ray did not show clearly. .

Q. What condition was his back in? A. The back was bruised and sore, hut showed no injury

to the back. Q. In other words, no frac.ture of the spinal

page 31 } eolumn? A. No, sir. ·

Q. How lung was Mr. Perritt under your care? A. He wa.s in the hospital from January 24th until Febrnary

13th, 1930. Then I saw him at his home until April 5th. That; 'va.s the last record we have. I sa:w Mr. Perritt onoo more on the street; just happened to. meet him. I don't think I l1ave seen him professionally since then.

Q.. Then, your last professional conference· with him wa.s on .April 5th?

A. Yes, sir. Q. Will you sta.te what what the condition of his arm and

hand and shoulder was at tha.t timeY A. He ha.d gotten back good use of his hand and of his fore­

a.rm, but I did not feel certain that the bone in the upper arm l1ad grown together at that time. It was sti1l weak; had grown together, it seemed, but was not strong .as it should be.

Q. Did you look into the· condition of his back at tha.t time? ·

A. No, sir, as I recall, at tha.t time, I did not-Q. What treatment did you give Mr. Perri.tt 's arm when

you were first called on fo treat him Y ... A. That first night he .came in 've made him as comfortable as possible; did not attempt to set his arm. HB was so knoeked

out by the accident and shock that we had to give page 32 } an anaesthetic. We found under the X-ray that

the bone was broken at such a.n angle when we go.t H together it would not stay. In order t'o hold it in position, ·we had to put a splint o£ ·a certain type· on his arm, which

r:-----~- ---- --

' 42 Supreme Court of App~als of Virginia.

pulls down on the lower arm, so as to keep the lower a~ ·down in position that way (indicating).

Q. How long waa that ·splint on his· armt A. That splint was still on his arm when he left the hos­

pital; stayed on about five weeks altogether. It was not the same splint. The first one was _rather uncomfortable to him and we had another, rather a modification of the same prin­ciple. ·

Q. Did he develop an ulcer as a result of wearing that splint? _

A. Yes, he developed an ulcer under his arm, rather to the l1ack as a result of ·the crutches. . Q; What treatment was given to his rib¥

A. He was strapped up with adhesive plaRt:eL·. arouncl the rig-ht side of the chest and back, extending ·~ little over on the left side. · · ·

Q. Doc.tor, as an orthopedic specialist, is it your opinion tha.t injuries of the type tha.t ~!r. Per.ritt suffered as a rnle do, or do not, cause very much suffering Y

A. Yes, I think they do. ·· Q .. What w·a.s Mr.' Perritt's condition ·with. re-

page 33 } gard .to suffering when he was· ad.mitted to the hos­pirf.al y

·A. I did not see him until about two hours afte;r his ad­mission.

Q. At the time you sa.w him f A. At the time I -sa:w him he was suffering a good deal; in

a good deal of pain and shock, but not nneonseions; quite shocked by the ·accident. ·

Q. Was it you, Doctor, who call_ed in Dr. Nichols, the family physician of the plaintiff!

A. Yes, sir. Q. Why did you :find that necessary? A. He did not seem to be responding to the treatment he

was getting in the hospital. His condition was not as satis­factory as we wanted it. He had been under Dr. Nichols' treatment for some time, so we had him to come in and see him, too.

Q. What was the amount of your bill for treatment of Mr. Perritt!

A. The only cl1arge we have on here is $100.

The witness stood aside.

·William S. Heindl v . .A~a- Perritt. 43

page 34} ASA PERRITT, being- recalled, testified ~s follows:

CROSS EXAML~ATION.

By Mr. May: , Q. Mr. Perritt, I will have to review a little of your testi­

mony to get the various directions stated. Harrison Street, I believ~, runs north and south?

A. Yes, sir. Q. That has two street car tracks on itt A. Yes, sir. · q. One, of -course, going in a northerly direction aud the

other in a .southerly direction 7 A. Yes, sir. Q. Grace Street has no car track on it, I don't believe, docs

it' A. No, sir. Q. You had gotten off a street ear that had been proceeding

:-::outhwardlv on Harrison Streett ... ~. Yes, sir .. Q. That street ca.r stopped when you got off at or about

what we would call the northwestern -corner of the inter~ec­tion, I believe 7

... ~. Yes, sir. . Q. You got off in the front of that carr

page 35 t A. I gqt off of the front of the car; it was a one­man car.

Q. You were going to what we 'vould call the eastet'lt curb of Harrison S'treet; that is where you intended to go; is that tightf

A. Yes, that is where I illltended to go. I intended to y,ro­ceed down G-race Street, east, going to the ~~:;;t eorner of Gra-ce and Harrison. ·

Q .. \Vhat was the -course that you took in order to cro:;;;:; over there-did you go diagonally, or did yo.u go straig-ht across until the -collision occurred?

i.\. I went diroot on Grace Street, right hy the intersection. 1 got over right at the edge of the- sidewalk; then I proceeded f1 wtight across like the street sidew:alk, on the edge of' ihe futer~ection.

Q. You pro-ceeded in a line with the northern curb of Grace Street if that side,valk on Grace Street had been run clean across the intersection t ·

A. Yes,, sir.

44 Supreme Court of Appeals of Virginia.

Q. You were going straight and not in a. diagonal direction Y A. Yes, sir. Q. W·hen wa.s it you saw this car which was going west on

Grace Street? A. When I walked around the street ca.r. When I got off

and turned to go a~ross I disc.overed the· car headed page 36' ~ west on Grace Street. ·

. Q. I was trying to get a more definite under-. €tanding of where you were. As I understand it, you had

just turned around to begin to go ·ac.ross the front of the street car when you first saw this car going in a westernly direction? . ' _

A. Yes, I was just making my turn and I looked .across I:larrison to my right to see if .there was any danger in my crossing; then I just glanced and sraw this car approac.hing tllis intersection on Grace Street, g-oing west. · Q. That was before you had started in front of the, car 1

A. No, I was. walking. I expect in that time· I had passed the street car, because I did not stop. I just·stepped off the street car and right around. I did not make any halt, be­cause everything· was perfectly bright'. The street car lights and lights of parked automobiles and the lights from those

. two confectioneries made it as light as day in the intersection. I looked across Harrison .to see that here were no ears or au­tomobiles ooming to endanger me in co1·ssi•ng; then my eye went up Grace Street and I saw this car co~ng, headed west on Grace. I watched this car until it came to the intersection, in case it turned at. that corner I W:ould not come in co.ntact with it. They slow up and if you watch them there is no

danger. I sa.w it was headed west as it got in page 37 ~ the intersection, and as it did it 'vhipped by me; it

w·a.s running pretty fast. Q. Don't repeat the facts.

By the Court: Mr. Perritt, try to make your· answers re­sponsive to the questions that a.re asl~ed you.

Q. Will you, as exactly as you can, lVIr. Perritt, say wheu was the first time y.ou looked south on Harrison Street?

A. I had just turned around the front of the stree.t c.ar~ Q. I~ tha.t the last time you looked to t!1<~ souti1 "! A. I don't recall any looldng- over there afte.r tiutt. Q. So, you would say that you did not look over there any

m-ore? A. I don't recall that I looked over there any more. I sa'v

I'

William S. Heindl v. Asa -Perritt. 45

there was no danger when I fi·rst looked and I don't recall that I looked any more.

Q- That wa.s just as you turned around •the street carY .A. That was just as I turned around and was walking

a~ros~s, in front of the street car. Q. You walked continually facing straight- ahead? A. Yes, I was looking straight ahead. I saw this ear com~

ing on Graee Street, headed west. Q. You saw thllJt as soon as you looked east on GraceY A. Yes, as soon as I started aeroos. Q. Where were you, exactly as you can say, when that au­

tomobile that was going west on Grace Street first page 38 } ran into Harris«>n StreetY

A. I was a.bout entering the northbound car track when it come by in the intersection. ·

Q. Tha.t is, the fi.rst tl'la.ck that you would get to in the northbound tra-ck?

A. Yes, I was entering in tlu~ track. It is only one or two steps from one -oar traok to the .other. I was in this car track when it passed me in not a second hardly. It was 1·unning faster. ·}.,rom the .time it entered the intersection 1. don't reckon I had taken one step.

Q. Did you look to the south when you entered the first track of the northbound track until the collision occurred t

A. Not tha.t I recall. Q. Is your eyesight goodY A. Yes, fairly good. -Q. Is your heaxing goodY A. Yes, sir. . Q.. Which way "ras the car going which you were in collision

with. Of your own knowledge, did that come either east or west on Grace Street a.nd turn up !there, or did it turn north on Haxrison. Of your own kn()wledge, where did it come from? -

· A. Of my own knowledge, the first time I saw this car it 'vas right a.t me, within three feet, headed north.

page · 39 } It had not made any turn at all a.f.ter I saw it. It was headed straight north; looked like it was in

three or four feet of me. It was right at me; I don't know just how far; but right at my side when I sa:w it, headed st-raight up Harrison, towards Broad.

Q. If when you reached tha.t first car -track of the north­bound track you had looked south, could you have seen that ca.r coming i

A. When I reached the track? Q. Yest

46 Supreme .Court of .Appeals of Virginia.

·By ~Ir. Coulbourn : If your Honor please, I object to that (1uestion, booause he has already stated he did look south and did not see the car coming. Mr. ::M:ay has askec;l the question if he ha.d looked south could he have seen the c~r coming. I think he has already answered that question in an -absolutely positive manner.

By J\!Ir. !fa.y: If it develops from ;the testimony, and I will assure the coul't that it will develop from the testimony,. that the .automobile with which you were in collision, Mr. Per­ritt, came from South Harrison Street, and you had looked when you r(!ached .the car track (that is, the :first traek of the ·northbound car fracks) could you have seen the automobile!

By !fr. Coulborun: If your Honor, ·please, I. page 40 ~ don't understand the question, for the simple rea-

son he has already made a· positive statement. We admit that the ca.r came from South Harrison StreBt, but we will not admit that he saw it, althoug-h he said he looked, and we object to any possibilities of this sort ~at all. I mean, any question tha:t is as vague as that.

By the Oourt: I will allow the question. There may be something that mig·ht have o-bscured his vision of that car. Jle can state the conditions that existed there at that time.

A. 'I could have seen it and did see it when 1 was in tliat car· track. There was nothing to· keep me or anybody from seeing at the intersection. I sa'v it in about three or four feet from me, while I was in that car traek.

Q. From the time you turned the corner of the street car until the time you reached the :flrst -of the northbound car tracks, if you' had looked ·south, do you know of anything which would have prevented you from seeing the oncoming automobile?

. By Mr. Coulbourn: If. your Honor please, I object to that question. He stated that he did look south.

By the Court : He can answer tha1t question .

. page 41 ~ .A .• I have just answered that. I looked south when I came over and there was no car moving- in

that direction. I looked down as fa.r on that track as I thought necessary, and there was no car mo:ving there. Evidently, if he was moving, he ·was moving- very fast.

By ~rr. ~lay: I move 'the court to s~trike out that part of the evidence: ''evidently he was moving- very fast.''

By the Court: Your motion is g-ranted and the jury is told to disregard that part of the answer.

William S .. Heindl v. Asa Perritt. 47

By Mr. May: Q. Do you understand the question,_ 1\:fr. Perritt? A. Yes, I understood it·. If I had been looking over there,

which I did look, I did not see anything. When I did look ag·ain I was in the ear track. I saw this automobile coming on me. I saw this other one pass me right in this car track, where I could have se·en him, if I had looked over there. P-os­sibly if I had looked I could have seen him on South Har­rison St:r;eet, but I had just looked over there and did not see any·thing. I thought my way was elea.r and nothing would overtake me before I could get across, unless it was· a flying machine .

. Q. You did not see. any of those around there 7 A .. No, sir, not •a.t that time of night. .

. Q. I will repeat the question: From the time you turned the co-rner of the street car until the. time you

page 42 } reached the first of the northbound car tracks, if you had looked south, do you know of anything

'vhich would ha Ye prevented you from seeing the oncoming automobile Y · · A. There was no obstacle on the intersection, whatever, to have prevented anybody from seeing.

Q. Ho•w far could you see south Y A. I could have eeen half wa:y of ;the blook, or near half

way, or at least forty- or fifty feet on the other side. As I went across there was light all along. near the intersection of Har­rison. I could have seen as far on that as any ordinary street. I looked across, as I told you at first, to see if I was in danger any way of anything. I did not .see any automobile or car. That is why I turned to look to see if I was clear in crossing. .

Q" If the automobile had headlights burning you could have seen it a block or more away, could you not~ . A. I could have seen it a .block~ but I did not look.

Q. I-I ow far did you look' · A. 20 or 30 feet. Between the, intersection a.t any ordina1·y

gait I c.ould have made it across if he had been within 20 feet of the intersection, and I did not see anything as I started across, and at any time I could have seen anything coming

in there, if I had looked, because there was nooth­page 43 } ing between us, except the car going west on Grace

Street. Q. You saw the car when it got in three feet of you Y A. I would say three or_four feet. Just as this car passed

me I heard that terrible roaring and I glanced and there it was 1ight on me.

48 Supreme Court of Appeals of Virginia~

Q. Did you turn around and look southf A. No; I just heard it and I throwed my eyes as I heard

that thundering noise. As I saw it I whirled and tried to get away, hut it 'vas so close ·on me I did not make the get­a.way.

Q. This car, ·as I understood you to say a little earlier, that was going west on Grace, that had about reached the inter­section when you had reached the first of ·the northbound ear track rails t

A. Yes, sir.

RE-DIRECT EXA~IINATION.

Bv ~Ir. Ooulboun1: ~Q. I believe you said in your direct examination, Mr. Per­

ritt, that you did see an automobile that appeared to be parked on the other side of Grace Street; that is, on Harrison Street south of Grace StreetY

A. Yes, there was one parked over there against that con­fectionery on the southeast corner, that. was back

page 44 ~ from the intersection, just parked out there beside the curbing.

Q. When you were struck, or just before you 'vere struck, you say you heard a thundering noise¥ .

A. Yes, that is what drew my attention to the car that was eoming on me, was that noise.

RE-CROSS EXll1JNATION.

By Mr. May: Q. This parked car, you speak of, I believe you stated that

did not interfere with your vision down the street? A. No, that was over on the side, to the curbing. Q. That would not interfere with your vision south on Har­

rison Street? A. No, sir.

r.rhe witness stood aside.

page 45 } J. P. BALDWIN, being first duly sw·orn, testified as: follows : '··

DIRECT EXA!\.fiNATION.

By Mr. ·Ooulbourn: I will state to the court that this is a witness who is the secretary of the company employing ~Ir ..

William S. Heindl v . .As a Perritt. 49

Perritt and he is simply g·oing t.o make a statement of his eomparative wages before and af.ter .the accident. I will give him this paper to refresh his memory.

Q. By wl1om are you employed,. Mr. Baldwin t A. By the Union Life Insuranc(;) Company. Q. I~ Mr .. Perritt, the plaitniff in this case, employed by

the ·union Life Insurance Company, and, if so, for how long a time has he been ·so employed t ·

A. Mr. Perritt wa.s employed by the Union Life from the week of November 18, 1929, until the week of January···27, 1930, at which time he was taken off the payroll and did not .come back on it until the 21st of July, 1930.

Q. Have you made up Mr. Pe1·ritt's account a statement of his earnings before January 27, 1930, and his earnings alter be was put back on the payroll, on a weekly basis 7

A. Yes, sir. pag·e 46 f Q. Will you state to the jury, using your figures

to refresh your memory, his weekly ea.rnings from November 18, 1929, up until January 27, 1930, by the week?

A. Yes, sir. The week of November 18th Mr. Perritt earned S15.25; the week of November 25th he ea.rned $21.47; the week of December 2nd he earned $32.84; the week of December 9th l1e earned $45.11; the week of De(~ember 16th he earned $47.22; the week of Dece·mber 23rd he earned $50.24 ; the week of De~ cember .30th he earned $48.03; the week of January 6th he earned $54.62 ; the week of January 13th he· earned $58.45 ; the week of Ja.nua.ry 20th he earned $57.14; the week of Janu­ary 27.th he ea.med $59.75.

Q. Then, I understand, .he was not put back ·on the payroll until the week of July 21, 1930f · A. Yes, sir.

Q. Will you give his earnings by the week from that tbp.e up to the time. tha.t you made this statement, November 17·th, 1930~

0

A. The week o.f July 21, 1930, he earned $2.68 ; the week of July 28, 1930, he eru:ned $3.68; the week of August 4, 1930, he earned $9.61; the week of August ll, 1930, he earned ·

$20.34; the week of August 18, 1930, he earned page 47 } $16.25; the week of August 25, 1930, he oo.rned

$16.88 ; the week of S'ept. 1, 1930, he earned $27.88; the week of Sept. 8, 1930, he earned $27.26; the week of Sep­tember 15, 1930, he earned $33.98; the week of Sept. 22, 1930, he earned $40.23; the week of Sept. 29, 1930, he earned $35.08 ; the week of October 6, 1930, he earned $32.53; the week of Oetober 13, 1930, he earned $34.87 ; the week of OctO'ber 20,

50 Supreme Court of Appeals of Virginia.

1~30, he earned $39.36; the week of October 27, 1930; he ea.rned $30.73; the week of November 3, 1930, he earned $43.37; the week of November -10, 1930,. he earned $33.53; the week of November 17, 1930, he earned $35.04.

Q. Mr. Baldwin, will you state to the jury on what basis Mr: Perritt is employed by the Union Life Insurance Com­pany; that is, exac.tly what work he does and how his earnings are calculated?

· · A. All of these ea.rnings of Mr. Perritt were caleulated on 100 per cent of his· eollootions. In other words, he got every-: tbing he collooted for these tw·o periods in here, before and after the accident.

Q. What a.re his duties 1 · A. He wa.s employed .to build a. debif, as we term it in the industrial insurance world, in that canvassers are builders of the debit. We really pay them 100 per cent of the con-

tract; after soma~ weeks the contract maybe goes page 48 ~ down· to 80 per cent. The regular men, that have

built a good-sized dehi·t, 1we generally pay them around 40 per ee:rut of the collections. · ·

Q. This building- of a debit, as you eall it, does that require a person's constant effort, on his feet, going around from house to houseY

A. Yes, he is supposed to give all the time he can to it; the more he builds the more money he will make. · Q. Have his ea.rnings since the accident, a:s refleeted by the statement that you made up, been greater or smaller than they were befo·re the· aooiderit.~ .

.A. Well, they have been smalle.r than before the accident. Q. Was there any week since the accident, Jthat is, not in­

cludi-ng the time that he was out ·of work entirely that he made as much as he did the. six weeks previous to that accident f · A. No, sir; it- looks to me cbefore the accident it was $50 a week. This $483.30 ctha.t he has produced since the aooi.:. dent represents about 18 weeks' work. $18 into that $483.30 would he· abo·rit $20 a week on an ~average that he ha.s pro­duced since the aecident, ·ag.ainst about $47.50, I should sa;y, before the .a-ccident.

The witness ·.stood aside.

page 49 ~ WILLIA!ti S. HEINDL, being first duly sworn, testified as follows:

: By Mr. Coulbourn: If your Honor please, I want to call Mr~ Heiridl under the statute as an adverse witness. , By the Court: .All right, sir.

William S~ Heindl v. A~a Perritt.

Dy Mr. Coulborun: ·Q. Your name is William S. Heindl 1 A. Yes, sir. Q.. Are you the defend ant in this case·? A. Yes, sir.

51'

Q. Mr. Heindl, will you state to the jury what you were do­ing ·on the evening of January 24, 1930, between 7 and 8 o'cloc.k?

A. I was going to ·Chelf's drugstore. As I came into the intersection of Grace and Harrison Streets, going north on IIarrison, I brought my car sufficiently to a stop-that is, I did not come to a dead .. stop, but I slowed down sufficiently to bring my car in second gear and proceeded north on Har­rison Street. On the northwest corner of Harrison Street was .a Clay Street car. Mr. Perritt walked in front of the street car and stepped in front of my automobile and it knocked him over to the right of the car. I stopped within

the leng·th of ·the car, itself, and goat out and picked page 50} up J\!Ir. Perritt and ca.rried him to the hospital.

Q. Did you see ~Ir. Perritt befo·re he stepped in front of your ear?

A. I did not see Mr. Perritt until he stepped in front of the c.ar.

Q. How do you know }fir. Perritt walked in front of the street car if you did not see him Y

A. I knew he walked in front of the street car because he said he did.

Q. What part of your car struck him? A. The left side of my car, the left front. Q. Do you mea.n your left running board? .A. The left front. · Q. What pa.rt, .the fender, the wheel, the bumper, or wha,t? A. I think i.t was t.he bumper. Q. That is, the left front of your bumper struck him? A. Yes, struck Mr. Perritt. Q. What became of ]tlr ~ Perritt then? A. It knocked him to the right and to the front. Q. Then y~u struck him again, did you not? A. I did not strike him aga.in. I struck him once, with

the left front of my car, and knocked him to the right of the · fron.t of my ca.r and then stopped.

Q. Did you drag hi:t;n? A. No, I did not drag him.

page 51 ~ Q. Where was Mr. Perritt when you brought your car ·to ·a stop 01

.A. He was .to the right of my car and to the front ..

52 l3upreme Court of Appeals of Virginia. ·-··-·-·-;

Q. You stopped your car within a ear length and struck him originally with the left front?

A. I would sa~ I stopped within the length of the car. -Q. You did not drag him a.nd did not hit him again, still

1J r. Perritt was in front of your car, .to. the right of the front of your ca.r when you fi·nally brought your car to a stop 1

A. Yes·, sir. Q. What kind of car do you drive Y A. Dodge sedan. Q. What horsepower is it f A. I think 22; I am not positive·. Q .. You say you were going to. Chelf's drugstore! A. Yes, sir. Q. Thalt is a.t the. corner of Harrison and Broad Streets? A. That is on Harrison Street, between Brood ~d Grace,

tb e 'vest side of Harrison S'treet. Q. Where did you come from immediately before· the acci­

dent? A. I have direct.Iy from my home, 2505 Grove A venue. Q. 2505 Grove Avenue~

A. Yes, sir. page 52 ~ Q. As you approached ~.he intersection of Grace

with Harrison Street, did you see that street oo.r st.anding :there T

A. I sa:w the street car standing there. Q. Did you notiee· passengers getting off ·and on it! A. I did not notice passengers g·etting off and on it. Q. Did you look to see· whether passengers were getting off

and on it¥ A. I did not. Q. Did you look to your right or to your left as you ap­

proached tha1t intersection~ .A. I did no.t.

- Q. You did notf A. No, .sir. Q. Did you see an automobile going west on Grace Street! A. No, sir. Q. What kind of lights ha:v·e you on your carY A. I don't have that same ca.r at present. Q. I mean· on the car that you had a.t the time of ihe acci­

dent? A. I.had good lights. Q. Did you blow your horn a.s you approached the inter­

section? A .. No, sir ..

William S. Heindl v. Asa Perritt. 53

Q. Did you blow it as you saw he was in front of your car? . .

A. I did not; I did not blow my horn at all. page 53 } Q. How· old was the car a.t the time· of the ac-. cident7

A. It w~as a 1926 model. That was about 11 months ago the accident happened. ·

Q. How long before the ~ooident had your brakes been ex­amined and by whom'

A. Tha,t I could not ·say. On the night -of the aooident I went down to Police lieadqua.rters to· report the aooident. I took this policeman down with me and he asked me tO' test. my brakes, which I did.

Q. On May 2, 1930, did you see Mr. Perritt? A. I could not say, I don't remember. Q. Did you see him about that time, appr()ximately that ,

time. A. That I eould not say. Q. You have seen Mr. Perritt several times since the acci­

dent, have you not Y A. I have seen Mr. Perritt since the aooident. Q. On or about May 2, 1930, did you make a ,statement t'o

Mr. Perritt, or did you not, that as you crossed that intersoo­ti on you had the car wide open Y

A. I ha:ve made no statement whateve·r to· 1\![r. Perrit·t' re-garding· the accident.

Q. Did you malre that statement •to anyone else t A. I have not. Q. Then, you deny that you made any such statement Y

A. I do. page 54 } Q. I think you stated a moment ago that you did

, not look to the ea.st or to the west f · A. I would not say that I turned my head. In coming into

an intersection y()u can look straight ahead and ·still tell whether anything coming to the right or the left. I don't" say I turned my head.

Q. Don't you think if you had looked to the e·ast you W()uld have seen the car that was going west?

l\... I don't thlnk I would.

By l\fr. M.ay: Q. Who a.re you employed by! A. At the time of the aooident I was with Pollard & Bagby. Q. Where are you employed now' · A. At the present time I am not working.

The witness stood .aside. 1 ;

54 Supr~me Court of Appeals of Virginia.

By Mr .. Coulbo·run: The plaintiff rests. By Mr. May: The defendant rests.

' .• .

page 55 ~ By Counsel for Defendant~ The defendant by counsel objects to the refusal of Instruction No .. ·

Z offered by the defendant, on the ground that it correctly staJtes the-law of the case; in that in this instance the plain­tiff was guilty of contributory negligence as a matter of law, and which issue is not in the discretion of the jury, and to the action of the court in overruling defendant's oqjection to the refusal of &aid instruction the defendant excepts.

The Court, .a.fter refusing instruction No. 2 requested by the defendant, gave of. its o;wn mo-tion Ins~truction No. 3-A, to which action of the court the~ defendant by c.ounsel objected, on the growid tha,t Instruction No. 2 correctly -states the law and to the action -of the court in overruling the defendant's objection the defendant excepts.

. .

By Counsel for Defendant: I objecl to the instruction ou who had the right of way, on the ground that it is not charged in the notice of motion that the defendant usurped the plain­tiff's right of way.

- The Court overuled said objection and exception was noted by co:unsel for defendan·t to said action of the cour·t on the grounds stated in' the objection.

page 56 ~ The court read the instructions ·to the jury and added ·the following:

Gentlemen of the Jury: This is an action based on the nlleg·ed ne~gligence of the defe-ndant, and if, under the evi­-dence ~and the instructions· of the court, you. find for the plaintiff; ·any sum that you allow him must be ba.sed on that negligenc.e and not on any promise or contract made by the defendant to the plaintiff to pay the plaintiff any sum or any expense that he may have incurred in the hospital, or other-. wise. ·

The jury retired .and then brought in their verdict, which w.as as follows:

"We, the jury, on the issue joined, find :for the plaintiff and assess his damages at $5,000.00.''

William S. Heindl v. Asa Perritt ..

By Counsel for Defendant: If your HonQr please, I desire to move the court to set aside the verdict, as being contrary to the law and the evidence, and because the evidence dis­doss tha.t .the plaintiff was guilty of contributory negligence

. as a matter of la,v. I therefore ask that ;final judgment be entered in the defendan-t's behalf. .

By Counsel for Plaintiff.: If your Honor, please, page 57} I submit that the case was fairly presented to the

jury under the instructions of the court, and .that ihere was ample evidence on which the verdict could have been based, and I therefore move that final judgment be entered in favor of the plaintiff.

By the ·Court: Gentlemen, I am going to continue this mO­tion and let the evidence be written up.

End of evidence.

ROBT. N. POLLARD, tludge.

Teste: This 31st day of January, 1931, afte.r notice to plain­tiff's attorneys, as required by law.

ROBT. N. POLLARD, Judge.

page 58} CERTIFlCATE NO.2.

The follo·wing instructions were given by the ·Court, and are ·all the instructions granted on the trial of this cause:

· Instructions Nos. A, B, C, D, were given at the request of the plaintiff.

Instructions Nos. I and III, were given at the request of the defendant.

Instruction No. III-·a was given by the Court at its own instance. ·

INSTRUCTION .A..

rl'he Court instructs the jury that a.t the time of the acci­dent complained of, there was in force a statute of the State of Virginia, which contained the foll()lwing provisions :

Section· 2145 (73) Pedestrians:

56 Supreme· Court of Appeals of Virginia.

(A) The roadbeds of hig·h,vays within cities and towns are primarily intended for vehicles, but pedestrians have the right to cross them in safety, and drivers of street ea.rs and vehicles shall exercise proper care not to interfere with such rights nor to injure them or their property .

. (B) When crossing highways or streets within incorporated towns or cities, pedestrians shall not carelessly or maliciously interfere with the orderly passag-e ·of vehicle and shall cross wherever possible only ·at intersections 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.

(C) At such intersection where no traffic official is on duty, pedestrians shall have the right .of wa.y over vehicles.

(D) This shall not entitle· the pedestrian to enter or cross the inter:sootion regardless of approaching .traffic, but shall be interpreted .to require vehicles to change th.eir course, slow down, or come to a complete stop if necessary to permit pedestrians t.o safely ·and expeditiously negotiate the cross­ing.

The Court intructs the jury that a violation of any of the foregoing provisions is negligence as a matter of

page 59 ~ law. If the jury believe from the evidence tha.t the Defendant, immediately before and at the time. of

the accident complained of, w•as violating a.ny of the said provisions, then the said Defendant 'vas guilty of negligence as a matter of l·a,v, and if the jury believe from the evidence that such negligence was the proximate cause -of the accident complained of, without negligence on .the part of Plaintiff, then the jury must find their verdict in favor of the Plain­tiff.

INSTRUCTION B.

The Court instructs the jury that a.t the time of ti1e aooi­dent complained of, there wa.s in f·orce ·a statute of the State of Virginia, which contained the follo'\ving provision:

Section 2145 ( 4) R-estrictions as to speed:

(a) Any person driving a vehicle on a highway shall drive

William S. Heindl v . .A.sa Perritt. 57

.the same at ·a ooreful and prudent speed not greater nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and ·Of any other conditions then existing. And any person who shall drive any vehicle upon a highway .at such speed as to endanger the life, limb or proper,ty of .any person, or so as ·to unneces­sarily block, hinder or retard the or:derly and safe use of the J1iglnvay by those foHowing, shall be prima fa.cie guilty of reckless driving.

The Cour:t instru~ts _the jury that a violation of the fore­going provision is negligence as a matter of law. If the jury believe from the evidenee that the Defendant, immediately lJefore and at the time of the accident oomplained, of was vio­lating the said provision, then the said Defendant was guilty of negligence as a matter of law, and if the jury :believe from the evidence that such negligence wa.s the proximate cause of the accident complained of, without .negligence on the part of the Plaintiff, then the jury must find their verdict in favor of tbe Plaintiff. . . . . - ..

INSTRUCTION C.

The. Court instructs -the jury .that if the Defendant relies upon the defense of contributory negligenee on the part of the Plaintiff, then the burden is upon the Defendant t<> prove sueh contributory negligence by a preponderance <>f the evi­dence, unless such contributory negligence appears from the Plaintiff's own evidence, or fr·om all of the :faets and cir-eum.· stances of the case.

INSTRUCTION D.

~rhe Court instructs the jury that if they believe the _Plain· tiff is entitled to recover, under the evidence and other in­structions <>f the Court, then, in assessing .the damag-es, if any, to which he may be entitled, they may tak91 into considera­tion:

page 60 } 1. The mental and physical suffering endured by the Plaintiff;

2. The extent and seriousness o.f his injuries and the prob· able dura.tion of the extent thereof;

3. S'uch sums as appear from .tl1e evidence the plaintiff suf·

S$ Supreme Court of Appeals of Virginia.

fered by reason of his inability to attend to his usual duties and whieh may have been occasioned by the accident.

4. Any .sums expended for medical and hospit~l trea~ent: . . ..

And assegs his damages at such sum .as they may think ju.st ~nd proper, but in no ev.ent to exceed the sum of $20,.,.

""000.00,- the amount .set out in the notiee of motion for judg­ment.'' ·

"INSTRUCTION I.

. The court instruets the jury that no presumption arises that the defendant was negligent upon a mere showing by the plaintiff that he was injured, but the plaintiff must es­tablish by a preponderance of the· evidence, that the defend­ant was guilty ·of negligence in one or more particulars speci­fied in his notice of motion, and that su~h negligence was the !:~ole proximate cause of the injuries oomp1ained of. If from the evidence as a whole you are undecided whether the plain­tiff has established -such a case, you will find in favor of the defendant. A verdict cannot be based on speculation, sur­mise, conjecture or sympathy for the plaintiff, but must rest entirely upon the evidence in the case and the instructions of the court. ·

INSTRU~CTION III.

The eourt instructs the jury that an automobilist has the right to assume a pedestrian will use his fa~ulties and exer­cise reasonable care for his own safety in crossing a strP.et.''

"''INSTRU·OTION III-A.

The court instructs the jury that the law enforces upon the plaintiff the duty to exercise reasonable care "in maintaining a lookout for his own safety and in this case if you believe the plaintiff did not exercise such a. degree of care in both looking· and ·Observing, you will find in favor o.f the defendant regardless of whether you believe he· w~ g-uilty of negligence or not."

The defendant objected to the giving of Instruetion A on the ground that there was no evidence tha.t the plaintiff was

without negligence-on his part, but, on the contrary, page 61 ~ the eyid~nce disclosed that he· was guilty of eon- · · tributory negligenee as a. matter of law ·as was held in the case of 1lfeade vs. Saunders, 151 Va .. 636. The ·court overru.led the· defendant's o"Qjection, and to the overruling of. the ·de.fend.ant's objection, the defendant excep•ted. ·

'Villiam S. Heindl v. A~a Perritt. 59

The defendant objected to the giving of Instruction III-a by the Court •at its own instance in that the negligence of the plaintiff was not to be· submitted as an issue of fact to the jury, but that his failure· to· keep a. reasonable lookout for his own ·safety, a.s. disclosed by the evidence of the case, convicted hlm of negligence in this regard as a. matter of law, as was held in the case of Meade vs. Sau,nders, 151 Va. 636.

Teste: T.his 31st day of J anua.ry, 1931, after notice to plaintiff's attorneys, as required by law. ·

ROBT. N. POLLARD, Judge.

page 62 ~ CERTIFICATE NO. 3.

On the trial .of this action, the defendant requested the Court to give the following instruction:

''IN.STRU·CTION II.

The court instructs the jury tha~t r~gardless of whether you believe the defendwt was guilty o,f negligence or not, nevertheless the law imposes upon the plaintiff the duty to·

. exercise rea.sona.bJe· care in maintaining a lookout for his own safety, and in this case, regardless of ·the question of neg­ligence o"n the part of the defendant, if you believe the plain­tiff endeavored to. cross the street wi.thout looking for ap­proaching traffic, or thait he did look and did not observe the near approach of the defendant, in each or either event the plaintiff is guilty of such .contributory negligence as should bar his recovery, and in such event or events your ·verdict should be in fayor of the defendant.''

. The defendant offered the instruction as correctly stating the law as applicable to the evidence of .the case, and main­tained that it had so been in the case of Meade vs. Sau.nders, 151 Va. 636, and Stephen Putney Shoe Cornpany vs. Orm,sby's A.tl?nr., 129 Va. 297.

The plaintiff objected to the giving of the instruction, con­tending the cases cited in support of the instruction were: not a pplica.bl~ to the· evidence in this case. The ·Court sustained 1he objections of the plaintiff, .a.nd to the action of the ·Court in so ~olding, the defendant excepted.

Teste: This 31st da.y of Ja.nuaxy, 1.931, after notice to plaintiff's attorneys, as required by law.

ROBT. N. POLLARD, Judge.

flO Supreme Court of Appeals of Virginia.

page 63 } Virginia:

In the Law and Equity Court o.f the City of Richmond~

.Asa Perritt, Plaintiff, vs.

William· S. Heindl, Defendant.

STIPULATION.

It is stipuh1fed between counsel for the respective parties to .the above litigation that the Clerk need not copy any -of the Exhibits introduced in evidence into the record, but may deliver the originals, without keeping copies, to counsel for William S. Heindl.

If is furt:her stipulated that counsel for vVilliam S. Heindl will present the original Exhibits to ~the S'upreme Court of Appeals of Virginia with their Petition for a Writ of Error and Supersedeas, and in the event such Writ of Error and Supersedeas is awarqed by the .Supreme Court of Appeals of Virginia, said counsel for \Villiam S. Heindl shall cause to be made copies of the Exhibits to be attached to the official records of the case.

Jan. 31, 1931.

'VM. C. COULBOUR.N, ·Counsel for A.sa Perritt.

SINNOTT, 1\IA.Y & LEAMAN, ·Counsel for William S. HeindL

page 64 ~ I, Luther Libby, Clerk of the Law and Equity Court -of the City -of Richmond, do hereby certify

that the foregoing is a true copy of so much <>f the record as was agreed between counsel should be copied in the above­entitled cause wherein A-sa Perritt is complainant and Wil­liam S. Heindl defendant, and tha.t the plaintiff had due no­tice of the intention of the defendant to apply for such tran­~ript.,

"\Vitness my hand this 5th day of February, 1931.

LUTHER LIBBY, Clerk ..

Fee for record $26.50.

A Copy-Teste:

H. STEWART JONES, C. G ..

INDEX

. Page· ·Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record............................................... 22 Notice of Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Verdict ................................... : .......... 54-27 Grounds of Defense ............. : .............. ~ . . . . . . . 27 Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 28 Certificate No. 1 ....... .' . . . . . .............. · ....... ··. • • . 29 Evi~ence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Dr. Angus R. Nichols ............................ : . . 30 Dr. R. F. Simms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Asa Perritt ...................................... 48-43-33 Dr. D. M. Faulkner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 J. P. Baldwin.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 William S. Heindl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

·Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Certificate No. 2 ........... ~ ....... ·-. . . . . . . . . . . . . . . . . . 55 Certificate No. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Stipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60