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Contributory negligence was jury issue in accident case

Virginia Lawyers Weekly//April 3, 2023

Contributory negligence was jury issue in accident case

Virginia Lawyers Weekly//April 3, 2023

Where an appellant struck the appellee with her car, the trial court correctly ruled that the appellee was not contributorily negligent as a matter of law, and that the issue was a jury question.


Spivey struck Thomas with her car while she was in a crosswalk. Each said they did not see the other, and each claimed they had a green light to proceed.

After Thomas presented her case, Spivey moved to strike because Thomas was contributorily negligent as a matter of law. The court denied the motion. The jury awarded Thomas $50,000. Spivey appealed the ruling that Thomas was not contributorily negligence and also appeals the trial court refusal to present two instructions to the jury.

“Thomas agreed on cross-examination that although she looked both ways to ensure there was no traffic before entering the crosswalk, she did not turn and look again after she began to cross. She further agreed that ‘if [she] had looked, [she] would have seen the car,’ and ‘the only reason [she] didn’t see it is because [she] didn’t look.’ …

“At trial, the court refused a modified version of Model Jury Instruction 10.020 informing the jury that (modified portions in italics):

“‘The duty to keep a proper lookout requires a driver or pedestrian to use ordinary care to look in all directions for a vehicle or person that would affect her driving or path of travel, to see what a reasonable person would have seen, and to react as a reasonable person would have acted to avoid a collision under the circumstances.

“‘The duty of the Plaintiff to look for traffic does not cease but becomes more insistent when she comes to the middle of the street, before stepping into the lane of travel of vehicles coming from her right.

“‘If the Plaintiff fails that duty to look for vehicles coming from her right, then she is negligent.’

“The language in this second rejected instruction was derived from the Virginia Supreme Court’s opinion in Hopson v. Goolsby, 196 Va. 832, 838 (1955).”

Contributory negligence

Whether a pedestrian “who is struck by an automobile … at or near a regular street crossing, or at a place customarily used as a crossing” exercised proper care or contributorily negligent “is almost invariably one for the jury.’ …

“It is axiomatic that a pedestrian endeavoring to cross the roadway owes a reasonable duty of care. …

“‘When a pedestrian … steps from the sidewalk into the street at an intersection, the law imposes upon him the legal duty of ascertaining if any vehicular traffic is approaching from the left.

“‘If the way be clear, he has the right to proceed to the comparative zone of safety, which is the center of the street.

“‘Upon his arrival at the center of the street, he is under the legal duty of looking to his right for approaching vehicles, and while the statute … accords him the right of way, he would be guilty of contributory negligence … if he attempted to assert his right of way in the face of approaching traffic dangerously near to him.’ …

“Unlike in this case, the plaintiff-pedestrian in Hopson crossed not at a crosswalk but ‘210 feet north of’ an intersection ‘into which traffic moves from five directions.’” …

Hobson “testified that before crossing, ‘she looked up and down the street twice and nothing was passing,’ but ‘that after she started across she did not again look to her right or to her left, but looked straight ahead and did not see the car that struck her and did not hear it until the noise of the brakes.’ …

“Spivey largely builds her case around Thomas’s concession that ‘if she had looked, she would have seen the Spivey vehicle and that the only reason she did not see the Spivey vehicle is because she did not look.’

“Though perhaps accurate, this conclusion does not resolve whether Thomas ‘exercised such vigilance and care as an ordinarily prudent person would have exercised under the existing circumstances.’ …

“Thomas crossed with the light at the crosswalk of a simple four-way intersection of less complexity than that in Hopson. And most significantly, Spivey was traveling not straight ahead like the vehicle in Hopson, but making a left turn behind and to the right of Thomas. …

“Thus, though Thomas may have been negligent in failing to continue looking left and right as she continued across Marshall Avenue, reasonable minds could differ as to (1) whether this potential negligence was a proximate cause of the collision, and (2) whether she was negligent at all in failing to completely turn around and see if any cars were approaching her from behind as she crossed the road.

“Consequently, Thomas was not contributorily negligent as a matter of law[.]” The issue was properly sent to the jury.


“We first begin our analysis considering the modified Model Jury Instruction 10.020, in which the trial court refused Spivey’s requested inclusion of a pedestrian’s duty of care. … Spivey argues that ‘no other instruction given to the jury … properly defined the scope of the duty of the pedestrian/Thomas to keep a proper lookout.’

“We disagree with Spivey’s analysis. The jury was given a detailed instruction of a pedestrian’s duties by way of granted Jury Instruction No. 16[.] … Including a second instruction about the pedestrian’s duties would be duplicative and ‘inappropriately “single out a part of the evidence tending to establish a particular fact.”’”

The instruction derived from Hopson was correctly rejected.

“[T]he circumstances of the collision in Hopson are distinguishable from those in this case. In Hopson, the vehicle was driving straight along the road which the pedestrian attempted to cross; the traffic was coming directly from the pedestrian’s right.

“In contrast, Spivey was making a left turn onto the road Thomas was crossing; Spivey’s car came from behind Thomas.

“The intersection in Hopson was also more complex than that in this case and, unlike Thomas, the pedestrian in Hopson did not cross at a crosswalk.

“All of those various factors were in consideration when the Hopson Court issued its ruling about the pedestrian’s duties, and that language, tailored to that case, was not an appropriate jury instruction in this one.

“Furthermore, we have held that the jury was sufficiently instructed on the pedestrian’s duties when crossing the street.”

Spivey v. Thomas., Record No. 0713-22-1, March 21, 2023. CAV (unpublished opinion) (Fulton III). From the Circuit Court of the City of Newport News (Flythe). Alexander Christopher Zaleski for appellant. Kevin D. Sharp for appellee. VLW 023-7-118, 9 pp.

VLW 023-7-118

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