Opinion
36507
April 7, 1933
Present, All the Justices
AUTOMOBILES — Contributory Negligence — Instructions — Evidence Sufficient to Support Verdict for Plaintiff — Case at Bar. — The instant case was an action for damages for personal injuries which plaintiff claimed to have received when she was struck by an automobile driven by defendant. The jury returned a verdict for plaintiff, upon which the court entered judgment. Defendant assigned as error that the court erred in giving a certain instruction for plaintiff, and in refusing certain instructions asked for by defendant, and in refusing to set aside the verdict on the grounds that the court erred in instructing the jury, and that plaintiff's own evidence showed, as a matter of law, that she was guilty of contributory negligence which barred a recovery by her. While the Supreme Court of Appeals did not in all respects approve the instructions given, it was of the opinion that the trial court committed no reversible error in giving or refusing instructions. It was further of the opinion that the evidence was ample to support a verdict finding the defendant guilty of negligence and does not, as a matter of law, show that the plaintiff was guilty of contributory negligence.
Error to a judgment of the Circuit Court of the city of Portsmouth, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.
Affirmed.
The opinion states the case.
Williams, Loyall Taylor, for the plaintiff in error.
Tom E. Gilman and James G. Martin, for the defendant in error.
This is an action, instituted by notice of motion for judgment, brought by Stancie Richardson against L. W. Burch to recover damages for personal injuries which she claims to have received when she was struck by an automobile driven by Burch. The jury returned a verdict for the plaintiff for $3,000, upon which the court entered judgment. To this judgment Burch has been allowed a writ of error.
His assignments of error are that the court erred in giving instruction 4-P asked for by the plaintiff, in refusing certain instructions asked for by the defendant, and in refusing to set aside the verdict on the grounds (1) that the court had erred in instructing the jury, and (2) that plaintiff's own evidence shows, as a matter of law, that she was guilty of contributory negligence which barred a recovery by her. The determination of whether there was reversible error or not depends upon the evidence.
While the court does not in all respects approve the instructions given, it is of opinion that the court committed no reversible error in giving or refusing instructions. It is further of opinion that the evidence is ample to support a verdict finding the defendant guilty of negligence and does not, as a matter of law, show that the plaintiff was guilty of contributory negligence. Virginia Elec. Power Co. v. Blunt's Adm'r, 158 Va. 421, 163 S.E. 329; Ebel v. Traylor, 158 Va. 557, 164 S.E. 721; Heindl v. Perritt, 158 Va. 104, 163 S.E. 93.
What has been said in the above paragraph expressed the opinion of all the justices except that of the writer (Justice Epes). He is of opinion that this case is distinguishable from all the cases above cited, and that the plaintiff's evidence shows, as a matter of law, that she was guilty of contributory negligence.
The judgment of the trial court will be affirmed.
Affirmed.