Tort Law

Contributory Negligence Cases

Fairfax Injury Lawyer Brien Roche Addresses Contributory Negligence Cases

Brien Roche

This page within Virginia Tort Law is an explanation of contributory negligence and a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of contributory negligence and the related topic of personal injury.  For more information on contributory negligence issues see the page on Wikipedia.
This is a tort/personal injury concept recognized in all local jurisdictions in Virginia, D.C. and Maryland. If there is any negligence on the part of the person bringing the claim (the plaintiff) then that may be a bar to that person’s claim if it contributed to the injury.

Contributory Negligence-State Specific

Different states have different ways of how they deal with negligence claims in that some of them acknowledge the concept of comparative negligence while other states are known as contributory negligence jurisdictions. In a comparative negligence jurisdiction, the negligence may be compared between the parties.

For instance, if I ran a red light and struck you while you were in an intersection but you happened to be intoxicated and laying in the middle of the intersection due to your intoxication then there obviously would be some negligence on your part. The jury would be called upon to compare the different levels of negligence. For instance, in that example they might conclude that I was 50% negligent and you were 50% negligent for being intoxicated and laying down in the middle of the intersection. If the jury then determined that your total injuries were $100,000.00 you would only receive $50,000.00 because you were 50% negligent in a comparative negligence jurisdiction. In a contributory negligence jurisdiction you would receive nothing.

Contributory Negligence Cases

[1]

Affirmative Defense

2004 Greater Richmond Transit Co. v. Massey, 268 Va. 354, 601 S.E.2d 609.

In this case involving bus accident, bus company sought contributory negligence instruction on the grounds that the plaintiff stood up before the bus came to a complete stop. That alone is not evidence of contributory negligence.

2004 O’Neill v. Windshire-Copeland Assocs., L.P., 267 Va. 605, 595 S.E.2d 281.

Plaintiff fell from balcony of apartment building. Issue was whether contributory negligence is available where defendant’s violation of local building code is negligence per se and is a proximate cause of the injuries. Supreme court answers in the affirmative that it is available.

2004 Rose v. Jaques, 268 Va. 137, 597 S.E.2d 64.

Defendant claimed error for failure to grant instruction on contributory negligence. When appellate court is reviewing failure to give jury instruction, the evidence is viewed in the light most favorable to the proponent of the instruction. In this case as in any case, there must be more than a scintilla of evidence to support the instruction. Here, the plaintiff was traveling in the right lane. The tractor trailer driven by the defendant was in the left lane and then moved to the center lane and then moved into the right lane, according to the evidence, depriving the plaintiff of any opportunity to avoid the tractor trailer. There was no basis for a contributory negligence instruction.

2002 Hot Shot Express, Inc. v. Brooks, 264 Va. 126, 563 S.E.2d 764.

Plaintiff struck rear of tractor trailer that was improperly stopped and allegedly not lit at night. Jury issue presented as to contributory negligence of plaintiff.

2002 Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748.

Medical malpractice action where defendant offered contributory negligence instruction. Instruction was improperly granted. Even though there was evidence that patient left hospital emergency room against medical advice, there was no evidence that he was ever told that he needed to be admitted to the hospital.

2001 Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d 707.

Essence of contributory negligence is carelessness. In this case, trial court improperly instructed jury on contributory negligence in medical malpractice case. In order for contributory negligence to bar recovery by plaintiff, that negligence must be concurrent with defendant’s negligence. Before issue of contributory negligence can be submitted to jury, there must be more than simply a scintilla of evidence to support finding that plaintiff failed to act as reasonable person under the circumstances. There was no evidence in this case of contributory negligence by patient in failing to disclose prior episodes of blood and protein in his urine in response to physician’s questions about whether patient had experienced any serious diseases or operations. There was no evidence that presence of blood and protein itself was serious disease or that the patient knew or should have known that prior episodes of blood and protein in urine indicated presence of serious disease.

1999 Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631.

In this medical negligence action, only issue on appeal was whether trial court properly instructed jury on contributory negligence of plaintiff. Defendant alleged that plaintiff had failed to inform him of discovery of lump in her left breast. Only evidence that supports that from defense point of view was that doctor did not note in her chart that she had discovered lump. Evidence from plaintiff was that she did inform doctor and further, that doctor indicated that lump was non-cancerous fibrocystic changes. To justify instruction, there must be more than mere scintilla of evidence to support it. In this case, evidence rose only to level of scintilla and therefore, no basis for contributory negligence instruction.

1999 Norfolk S. Ry. v. Thomas, 258 Va. 516, 522 S.E.2d 620.

Issue on appeal was whether or not defendant was entitled to instruction on contributory negligence. The fact that employee may have been guilty of contributory negligence does not bar recovery for employer’s negligence, but damages shall be reduced by jury in proportion to amount of negligence attributable to employee. When there are reasonable alternatives to performing task in unsafe way, plaintiff must act with due care and will be held responsible for acting unreasonably. Issue on contributory negligence is based upon evidence that employee failed to follow a specific safety instruction reasonably imposed to protect employee from injury. In this case, jury should have been instructed on issue of contributory negligence.

1998 Diehl v. Butts, 255 Va. 482, 499 S.E.2d 833.

Court granted contributory negligence instruction that also incorporated concept of mitigation of damages. Two concepts are separate and distinct and it was error to grant such instruction.

1998 Williams v. Harrison, 255 Va. 272, 497 S.E.2d 467.

Wrongful death action arising out of motor vehicle accident. Decedent was operating motor vehicle in excess of speed limit and on wrong side of road when he was rear-ended by defendant who was likewise exceeding speed limit and on wrong side of road. Defendant had been previously convicted of involuntary manslaughter. That was not bar to raising defense of contributory negligence.

1993 Reid v. Ayscue, 246 Va. 454, 436 S.E.2d 439.

Daughter driving vehicle in which mother is passenger. Mother is killed in collision. In wrongful death action daughter is denied any recovery by jury although brother is awarded damages. In subsequent contribution action issue is raised whether negligence of daughter has been determined. Court applied doctrine of collateral estoppel which consists of: (1) identity of persons and parties; (2) identity of issue; and (3) mutuality of operation of estoppel. Court held that contributory negligence had been litigated and daughter was guilty of negligence.

1993 Henderson v. Gay, 245 Va. 478, 429 S.E.2d 14.

Auto accident at intersection controlled by 4-way stop. Witness testified that plaintiff stopped at intersection, looked both ways, and then proceeded into intersection. Witness further testified that he observed defendant’s vehicle approaching intersection at speed of 40-50 miles per hour, did not stop at stop sign, but slid into intersection. Witness further testified that plaintiff’s vehicle was in middle of intersection when he first saw defendant’s vehicle approaching. Witness further testified that when plaintiff entered intersection defendant’s vehicle was 2½ car lengths away from intersection. Trial court overturned jury verdict in favor of plaintiff on grounds that plaintiff was guilty of contributory negligence as matter of law because of his failure to observe defendant’s vehicle when it was 2½ car lengths away from intersection as plaintiff entered intersection. Plaintiff testified that she did not see defendant’s vehicle until plaintiff was in middle of intersection. Jury was entitled to disregard conflicting testimony of witness and to accept plaintiff’s testimony. Jury issue presented.

1993 Loving v. Hayden, 245 Va. 441, 429 S.E.2d 8.

Plaintiff traveling north making left turn at intersection. Guard shack was 65 feet north of intersection in middle of road at entrance to NASA center. Plaintiff maintained that guard shack obstructed view of south bound defendant’s vehicle. Jury was entitled to conclude that plaintiff’s view of defendant’s vehicle was obstructed by guard shack and that she did not see vehicle even though she exercised reasonable care. Question of whether or not defendant’s vehicle was in plain view was question of fact to be resolved by jury.

1991 Wolfe v. Baube, 241 Va. 462, 403 S.E.2d 338.

Defendant who was willfully and wantonly negligent cannot rely on plaintiff’s contributory negligence as defense unless plaintiff is also guilty of willful and wanton negligence. Willful and wanton negligence is acting consciously in disregard of another person’s rights or acting with reckless indifference to consequences, with the defendant aware of existing circumstances and conditions under which his conduct probably would cause injury to another. It is greater in degree than gross negligence. In this case plaintiff was traveling approximately thirty miles over limit when he saw defendant’s vehicle in his lane with no headlights on at night and took appropriate evasive action. As matter of law he was not willfully and wantonly negligent although he certainly was negligent and perhaps even grossly negligent. While degree of negligence ordinarily is an issue for jury, in this case, Supreme Court decided as matter of law that Wolf was not willfully and wantonly negligent.

1988 Chereskin v. Turkoglu, 235 Va. 448, 369 S.E.2d 161.

Defendant not entitled to contributory negligence instruction since his evidence clearly established no contributory negligence.

1987 Litchford v. Hancock, 232 Va. 496, 352 S.E.2d 335.

Any negligence of plaintiff which is proximate cause of accident will bar recovery.

1983 Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315.

Medical malpractice case. It is a well-established principle of tort law that to bar recovery plaintiff’s negligence must concur with defendant’s. Here plaintiff’s alleged negligence followed that of defendant. Trial court’s instruction permitting jury to determine plaintiff’s contributory negligence was error. Her negligence, following her physician’s negligent treatment, may mitigate damages, but it does not bar her recovery.

1983 Kings Mkts. v. Yeatts, 226 Va. 174, 307 S.E.2d 249.

Plaintiff slipped on parking lot due to snow and ice. At time he was following defendant’s employee to his car after having shopped at defendant’s store. Jury issue created as to contributory negligence.

1944 Perdue v. Patrick, 182 Va. 398, 29 S.E.2d 371.

Contributory negligence is complete defense.

[2]

Danger Deliberately Incurred

2004 Southern Floors & Acoustics, Inc. v. Max-Yeboah, 267 Va. 682, 594 S.E.2d 908.

Plaintiff injured in grocery store as a result of tripping over construction material in area where independent contractor was working. Under these facts, issue of contributory negligence was a question for the jury and could not be decided as a matter of law. When plaintiff is injured by open and obvious defect, it is his burden to show conditions outside of himself that prevented him seeing the defect or that would excuse his failure to observe it. In particular, the distraction must be unexpected and substantial. In this case, plaintiff, while walking through construction area, alleged that the yelling and pointing of the construction workers was enough to excuse his inattention. This created a jury issue.

1994 Norfolk & W. Ry. v. Hodges, 248 Va. 254, 448 S.E.2d 592.

Plaintiff struck by heavy door apparently supported only by arm with gravity mechanism. This was unusual condition of which plaintiff was aware. As such he should have realized that gravity mechanism could not be relied upon to hold doors open. Jury issue presented as to contributory negligence.

1994 Bregel v. Busch Entertainment Corp., 248 Va. 175, 444 S.E.2d 718.

Plaintiff, riding on skyride at Busch Gardens, kept hand outside cabin, which was then struck by another cabin. Jury issue created as to contributory negligence.

1993 Wright v. Norfolk & W. Ry., 245 Va. 160, 427 S.E.2d 724.

Plaintiff approaching railroad crossing has duty to look and listen with reasonable care. He does not have absolute duty to discover presence of train unless by so looking and listening he was bound to have discovered. Railroad crossing is proclamation of danger. When vehicle operator drives blindly upon a grade crossing and takes no precaution for his own safety, his negligence precludes recovery. In this case, plaintiff was held guilty of contributory negligence as matter of law.

1987 Bowers v. May, 233 Va. 411, 357 S.E.2d 29.

Evidence that plaintiff slammed on his brakes and stopped suddenly was sufficient to justify contributory negligence instruction in this rear-end accident case.

1987 Litchford v. Hancock, 232 Va. 496, 352 S.E.2d 335.

Oversized vehicle operated by defendant occupied two-thirds of plaintiff’s lane. Plaintiff should have seen this obstruction from distance of 100 yards. Evidence supports jury finding that plaintiff was guilty of contributory negligence.

1984 Griffin v. Shively, 227 Va. 317, 315 S.E.2d 210.

Plaintiff knew defendant had significant fear of snakes. Plaintiff left defendant’s place of business to go out to area to obtain snakes. Plaintiff knew defendant had gun with him. Moments later plaintiff flung door open and threw object towards defendant that appeared to be snake. Defendant, believing it to be snake, shot at it and killed plaintiff. Defendant who is guilty of willful and wanton negligence cannot rely upon contributory negligence as defense. This rule is subject to exception that when plaintiff’s contributory negligence itself amounts to willful and wanton conduct, then recovery is barred. In this case jury issue was presented as to whether or not plaintiff was guilty of willful and wanton negligence.

1984 King v. Bondurant Dev. Corp., 227 Va. 206, 315 S.E.2d 390.

Plaintiff slipped and fell on some ice as he exited from doorway. In answers to interrogatories plaintiff admitted that when he entered doorway he noted some snow and ice accumulation. A few minutes later when he exited, area was in same condition. In his pleadings, plaintiff alleged that walking on that surface was extremely hazardous due to accumulation of snow and ice. On pre-trial motion for summary judgment that allegation was insufficient to convict plaintiff of contributory negligence as matter of law. Plaintiff does not state that he perceived and appreciated danger before walking in that area and he does not admit facts which would necessarily render danger obvious to person exercising reasonable care. To prevail on this motion, defendant would have to establish foregoing matters.

1975 Rouse v. Great Atl. & Pac. Tea Co., 216 Va. 293, 217 S.E.2d 891.

Plaintiff advanced at night through unlit field, with which he was unfamiliar, from place of relative safety. Contributory negligence as matter of law.

1974 Reed v. Carlyle & Martin, Inc., 214 Va. 592, 202 S.E.2d 874.

Plaintiff chose to “feed” ensilage wagon manually and was subsequently injured. Plaintiff claims he did not feel any danger. Test is whether in exercise of reasonable care he should have known he was in peril. Contributory negligence as matter of law.

1973 Nelson v. Pendleton, 214 Va. 139, 198 S.E.2d 593.

Plaintiff housekeeper fell down stairs while trying to pick up child. Rescue doctrine not applicable since plaintiff’s negligence contributed to her injuries.

1972 Budzinski v. Harris, 213 Va. 107, 189 S.E.2d 372.

One who knows or in exercise of ordinary care should have known that driver has been drinking intoxicating beverages to such extent that his ability to drive has been or is likely to have been impaired, and voluntarily enters automobile or continues as passenger after reasonable opportunity to leave, is contributorily negligent in absence of exigent circumstances which make such continuance reasonable.

1971 Clausen v. Virginia Transit Co., 211 Va. 557, 179 S.E.2d 463.

Plaintiff made right turn on left side of cutoff road, adjacent to defendant’s bus, which was in right hand of cutoff. Contributory negligence as matter of law.

1963 Smith v. VEPCO, 204 Va. 128, 129 S.E.2d 655.

Plaintiff saw electrical lines overhead yet still allowed surveyor’s rod to come in contact. Contributory negligence as matter of law.

1961 Gall v. Great Atl. & Pac. Tea Co., 202 Va. 835, 120 S.E.2d 378.

Plaintiff fell on grapes on floor of supermarket. Grapes were visible on floor. Court properly instructed on contributory negligence.

1961 Appalachian Power Co. v. Matthews, 202 Va. 747, 120 S.E.2d 291.

Decedent had been warned of danger and proximity of electrical wire yet he still touched it; contributory negligence as matter of law.

1959 Sanford v. Mosier, 201 Va. 358, 111 S.E.2d 283.

Pedestrian struck on roadway. Plaintiff crossing 20 foot road. When he began crossing, defendant was 300 feet away. When he got halfway across, defendant was 100 feet away yet plaintiff continued on. Contributory negligence as matter of law.

1959 Norfolk & W. Ry. v. Hagy, 201 Va. 183, 110 S.E.2d 177.

Railroad crossing accident. Plaintiff relied on 11-year-old niece to advise him of approach of train. When plaintiff did actually see train he failed to properly gauge its approach. Contributory negligence as matter of law.

1952 Virginia Beach v. Starr, 194 Va. 34, 72 S.E.2d 239.

Plaintiff is guilty of contributory negligence as matter of law where she admits that she saw defect and realized it was dangerous.

1950 Bryan v. Fewell, 191 Va. 647, 62 S.E.2d 39.

Defendant driver saw plaintiff pedestrian stop and look directly towards his vehicle. If plaintiff carelessly undertakes to cross busy thoroughfare without looking, or if he looks, fails to see or heed traffic that is obvious and in dangerous proximity and continues on into its path, he is guilty of negligence as matter of law.

1950 Seaboard Air Line R. R. v. Crowder, 191 Va. 635, 62 S.E.2d 227.

Railroad crossing accident. In failing to remove himself from place of known danger after his car stopped on track, deceased was guilty of negligence that was proximate cause of death.

1950 Horsley v. Chesapeake & Ohio Ry., 191 Va. 628, 61 S.E.2d 868.

Plaintiff’s stalled truck struck at crossing by defendant’s train. Instead of leaving vehicle and moving to place of safety, plaintiff attempted to start vehicle and remove it after having been warned twice of swiftly approaching train. Under facts, contributory negligence as matter of law.

1948 Stark v. Hubbard, 187 Va. 820, 48 S.E.2d 216.

Plaintiff pedestrian misjudged distance of approaching car and quickened her step towards its oncoming path.

1948 Washabaugh v. Northern Va. Constr. Co., 187 Va. 767, 48 S.E.2d 276.

Child drowned in quarry while swimming. Danger was natural, open, and obvious.

1945 Smith v. Wiley Hall Motors, 184 Va. 49, 34 S.E.2d 233.

Customer of gas station who in looking for rest room walks into dark room that is actually grease pit and falls in is guilty of contributory negligence.

[3]

Diminished Capacity

1967 Wright v. Tate, 208 Va. 291, 156 S.E.2d 562.

Plaintiff’s decedent was of diminished mental capacity. Unless person is child or is insane, standard to which he is held for his own protection is that of reasonable man under like circumstances. Mental deficiency which falls short of insanity does not excuse conduct that is otherwise contributory negligence.

[4]

Emergencies

See Sudden Emergency, § 2.09.

See Rescue Doctrine, § 1.32.

2002 Jones v. Ford Motor Co., 263 Va. 237, 559 S.E.2d 592.

Products liability action against Ford alleging sudden acceleration. Contributory negligence instruction may be appropriate since evidence justified conclusion that if alleged defect caused sudden acceleration, then motorist could have stopped car by applying brake pedal. If this instruction was granted, however, then plaintiff was entitled to sudden emergency instruction. Contributory negligence is not bar to breach of warranty claim.

1997 Harris v. Harman, 253 Va. 336, 486 S.E.2d 99

Harris was tailgating Harman. Harman drove off road in no-contact accident. Harman sues Harris. Harman defends issue of contributory negligence alleging that tailgating by Harris placed Harman in position of peril. Tailgating in this case did not present Harman with immediate peril since he had been aware of tailgating for four to five miles and his speed had been consistent. Harman guilty of contributory negligence as matter of law.

1970 Motley v. Doe, 210 Va. 428, 171 S.E.2d 818.

Plaintiff confronted by defendant on his side of road 250 feet away with plaintiff traveling 50 to 55 mph. Plaintiff released accelerator and when it became apparent defendant would not return to his lane plaintiff took evasive action resulting in accident. Jury issue presented as to whether plaintiff acted as reasonably prudent man.

1966 Elliot v. Lewis, 207 Va. 361, 150 S.E.2d 129.

Plaintiffs decedent killed while working under car on shoulder of secondary highway. Having mechanical difficulty, plaintiff’s decedent not contributorily negligent as matter of law.

1951 Andrews v. Appalachian Elec. Power Co., 192 Va. 150, 63 S.E.2d 750.

In attempting to save life of another, one is justified in exposing himself to danger in manner that under other circumstances would deprive him of legal redress for injuries sustained.

[5]

Fellow Servant

See Workers’ Compensation Exclusiveness of Remedy, § 11.02.

1950 LeSueur v. Ayres, 191 Va. 119, 60 S.E.2d 26.

Plaintiff’s decedent, passenger, was killed when defendant’s truck failed to negotiate curve and left highway. Decedent was employee of defendant as was driver of vehicle. Fellow servant rule applied. Foreman is fellow servant of workers under him save when he is performing non-delegable duty of master. Driving truck is not performing any personal or non-assignable duty of master.

1947 P.L. Farmer, Inc. v. Cimino, 185 Va. 965, 41 S.E.2d 1.

Employer must not knowingly subject his servants to hazards of incompetent or careless associates. In such case fact that injury was due to fellow servant may be no defense at all.

1946 Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73.

Injury to employee caused by act of another employee is loss within field of industrial accidents, intended by act to be borne by industry as industrial loss without opportunity for common law action against fellow employee who is responsible for injury.

[6]

Miscellaneous

2007 Estate of Moses v. Southwestern Va. Transit Mgmt. Co., 273 Va. 672, 643 S.E.2d 156.

Plaintiff is struck on roadway by bus. Impact occurs approximately 125 feet from crosswalk at nearest intersection. Plaintiff was crossing where impact occurred because, he says, that is where everyone crosses. Plaintiff further testified that he was about to step on the curb when he was struck by the bus and that he did not see the bus because it had just turned onto the roadway. Trial court improperly held that this was contributory negligence as a matter of law.

2004 Chandler v. Graffeo, 268 Va. 673, 604 S.E.2d 1.

Medical malpractice action where plaintiff presented at emergency room. Defendant emergency room doctor indicated condition was not emergent and made referral. Plaintiff attempted to make appointment with that doctor but prior to actual appointment with the doctor, the patient died from an aneurysm. For contributory negligence to exist, the negligence of both parties must concur. That did not happen in this instance since any arguable negligence on the part of the plaintiff was subsequent to the arguable negligence of the defendant doctor.

1995 General Ins. of Roanoke v. Page, 250 Va. 409, 464 S.E.2d 343.

Insured’s failure to read his insurance policy constitutes negligence as matter of law. In this instance, plaintiff claimed that he asked for increased policy limits, was not given increased limits, but did not notice that at time policy was handed to him. He simply did not read the policy.

1989 Commonwealth v. Coolidge, 237 Va. 621, 379 S.E.2d 338.

Defendant is entitled to finding instruction on contributory negligence where it correctly states law and is supported by evidence.

1987 Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539.

Medical malpractice case. Defendant maintained that decedent was negligent for taking aspirin at same time he was taking Coumadin. For plaintiff’s negligence to bar recovery it must concur with that of defendant, i.e., contributory negligence must be contemporaneous with main fact asserted as negligence on defendant’s part. Plaintiff in this case had already taken aspirin by time defendant committed his negligence. Defendant knew that plaintiff had taken aspirin and was obliged to treat him with that in mind. Contributory negligence instruction should not have been given.

1983 Gardner v. Old Dominion Stevedoring Corp., 225 Va. 599, 303 S.E.2d 914.

Plaintiff was reporting to work at pier when his vehicle was struck by rail car. He provides no acceptable explanation for his failure to see rail car that slowly approached him, squarely in his field of vision for one minute prior to impact. Contributory negligence as matter of law.

1982 Wells v. McMahon, 223 Va. 192, 288 S.E.2d 439.

Rear-ender. Case remanded for new trial where trial court erred in determining as matter of law that defendant was negligent in failing to avoid collision and that plaintiff was free of contributory negligence in stopping on highway.

1982 Todt v. Shaw, 223 Va. 123, 286 S.E.2d 211.

Fact that plaintiff did not look in rear-view mirror prior to making left turn held not contributory negligence where she slowed down and gave proper turn signal.

1981 Colonial Nat. Gas Co. v. Sayers, 222 Va. 781, 284 S.E.2d 599.

Tenant injured by stepping into settled ditch across path used by tenants in apartment complex was invitee and did not assume risk or act with contributory negligence as matter of law.

1981 Basilotta v. Barker, 222 Va. 683, 283 S.E.2d 220.

Pedestrian crossing with traffic light in his favor has right-of-way and motorist has duty to permit pedestrian to cross safely. Contributory negligence of pedestrian held question for jury.

1981 Butler v. Yates, 222 Va. 550, 281 S.E.2d 905.

Driver with right-of-way must keep reasonable lookout for other vehicles. Plaintiff held not contributorily negligent as matter of law where there was no evidence that he was aware or should have been aware that defendant would cross intersection. Plaintiff had no obligation to continuously watch for vehicles that might dart in front of him.

1979 Petress v. Seay, 219 Va. 1053, 254 S.E.2d 91.

For jury to say whether plaintiff’s decedent was or was not contributorily negligent in that as reasonable man, saw or in exercise of ordinary care should have seen defendant’s vehicle in time to avoid accident.

1979 Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 252 S.E.2d 354.

Plaintiff injured while cleaning soft drink dispensing unit by means of pressurized system, it exploded, dislodging lid on syrup tank which struck plaintiff. Plaintiff unaware that locknut had been removed from adjusting screw. Contributory negligence as matter of law not shown.

1978 Norfolk & W. Ry. v. Chrisman, 219 Va. 184, 247 S.E.2d 457.

Door of freight car fell on employee of consignee as he was opening it with “come along” and it displaced from its upper track. No contributory negligence as matter of law.

1978 Crawford v. Johnson, 219 Va. 9, 244 S.E.2d 752.

Plaintiff’s decedent stopped car in right turn lane after dark to inspect vehicle in median strip. When two or three feet into northbound lane, he was struck and killed by defendant’s vehicle. Contributory negligence established as matter of law.

1977 Underwood v. City of Radford, 217 Va. 891, 234 S.E.2d 253.

Fact that plaintiff did not see defendant’s vehicle until it was in intersection and immediately in front of him, made contributory negligence question for jury.

1977 Virginia Farm Bur. Mut. Ins. Co. v. Simpkins, 217 Va. 611, 231 S.E.2d 226.

Plaintiff’s decedent fulfilling duty to remove calf from highway when struck and killed by defendant. Since movements of animal restricted decedent, he was not pedestrian for purpose of statute. Jury issue.

1976 Norfolk & W. Ry. v. Wright, 217 Va. 515, 229 S.E.2d 890.

Fair inference that plaintiff’s decedent was contributorily negligent as he had high alcohol weight content (0.13) and obviously disregarded written signs and flashing red lights. Vehicle struck at crossing by locomotive.

1976 Lerwill v. Regent Van & Storage, Inc., 217 Va. 490, 229 S.E.2d 880.

Rear-ender. Plaintiff struck by defendant while momentarily stopped to make left turn. Contributory negligence as defense must be more than merely trivial; it must be contributing cause of accident. Proper instructions to jury discussed.

1976 Bunn v. Norfolk, F. & D. Ry., 217 Va. 45, 225 S.E.2d 375.

Railroad grade crossing accident. Plaintiff’s decedent guilty of contributory negligence as matter of law. Evidence showed train gave proper warning and travelled at reasonable speed.

1975 Straughan v. Nash, 215 Va. 627, 212 S.E.2d 280.

Plaintiff’s decedent guilty of contributory negligence as matter of law for attempting to walk across highway in front of oncoming traffic, dangerously close and in full view.

1975 Boyd v. Diggs, 215 Va. 560, 211 S.E.2d 97.

Plaintiff attempted to pass defendant in close proximity to intersection in violation of statute. This was contributory negligence as matter of law.

1974 Charlottesville Music Center, Inc. v. McCray, 215 Va. 31, 205 S.E.2d 674.

Burden of defendant to show plaintiff’s negligence was proximate, direct, efficient, and contributing cause of injuries. Presumption of due care of deceased invoked, but jury question still presented on issue of contributory negligence.

1973 Norfolk S. Ry. v. Rayburn, 213 Va. 812, 195 S.E.2d 860.

FELA case; not error to refuse instruction that commingled elements of assumption of risk (which is not a defense), with contributory negligence that could be shown to diminish damages.

1973 Clark v. Parks, 213 Va. 744, 195 S.E.2d 859.

Plaintiff backed his car up on highway in path of defendant’s oncoming truck that plaintiff had seen coming. Rear of car struck by front of truck. Not error to grant summary judgment on contributory negligence.

1973 Johnson v. Slusher, 213 Va. 728, 195 S.E.2d 871.

When there is nothing inherently incredible about plaintiff’s testimony, jury had right to believe it, and jury is proper tribunal to determine what facts establish contributory negligence. Error to set aside verdict.

1973 Mitchell v. Lee, 213 Va. 629, 194 S.E.2d 737.

Plaintiff’s failure to see “Men Working” sign indicated she was not keeping proper lookout, her speed was unlawful, and she did not keep car under proper control. Guilty of contributory negligence as matter of law.

1973 Gumenick v. United States, 213 Va. 510, 193 S.E.2d 788.

No sufficient evidence that plaintiff was intoxicated or that he had any familiarity with rotted handrail on porch from which he fell, receiving injuries rendering him quadriplegic. Not error under these facts to deny instruction on contributory negligence.

1972 Monk v. Hess, 213 Va. 244, 191 S.E.2d 229.

Assumption of risk and contributory negligence must be distinguished. Carelessness is essence of contributory negligence while venturousness is chief characteristic of assumption of risk. Guest knew driver was drinking; assumed risk.

1971 Clausen v. Virginia Transit Co., 211 Va. 557, 179 S.E.2d 463.

Plaintiff made right turn on left side of cutoff road, adjacent to defendant’s bus which was in right hand of cutoff. Contributory negligence as matter of law.

1971 Norfolk & W. Ry. v. Gilliam, 211 Va. 542, 178 S.E.2d 499.

Vehicle struck by train at public grade crossing. Plaintiff in position to see train; awake and in possession of his faculties. Reasonable care entails looking and listening when it will be effective so that driver can be warned. Contributory negligence as matter of law.

1970 Brown v. Wilson, 211 Va. 35, 175 S.E.2d 412.

Where testimony of plaintiff and defendant in hopeless conflict, jury is proper tribunal for resolution of problem. There being sufficient credible evidence presented by defendant of plaintiff’s contributory negligence, it was error to set aside jury verdict for defendant.

1968 Sayre v. Shields, 209 Va. 409, 164 S.E.2d 665.

Plaintiff, despite having right-of-way, offered no excuse for her failure to see defendant’s vehicle that was in plain view, before it struck her. Contributory negligence as matter of law.

1968 Major v. Hoppe, 209 Va. 193, 163 S.E.2d 164.

Evidence of blood alcohol level of plaintiff guest showing enough to impair ordinary individual’s judgment relevant to issue of contributory negligence on part of plaintiff.

1968 Johnson v. Wilmoth, 209 Va. 82, 161 S.E.2d 682.

Defendant blinded by lights of oncoming vehicle struck plaintiff either on shoulder or on roadway. Questions of negligence and contributory negligence for jury.

1967 Dickenson v. Tabb, 208 Va. 184, 156 S.E.2d 795.

Plaintiff was passenger in vehicle in first wreckage. She went to other wrecked car on road to assist when third vehicle collided. Her husband was down road directing traffic. No assumption of risk: contributory negligence was for jury to decide.

1967 John Doe v. Simmers, 207 Va. 956, 154 S.E.2d 146.

Uninsured motorist action; plaintiff forced off roadway by vehicle unknown to her. Plaintiff not contributorily negligent as matter of law, despite testimony that her speed was only 15 mph when she went onto shoulder and traveled some 150 feet. Shoulder wet; issue properly for jury.

1966 Langhorne Rd. Apts., Inc. v. Bisson, 207 Va. 474, 150 S.E.2d 540.

Plaintiff slipped and fell on icy walkway under defendant’s control. Plaintiff not contributorily negligent in using walk after storm, nor was he under duty to walk through snow beside walk. Plaintiff’s testimony showed that he proceeded with reasonable care.

1966 Seawell v. Carmines, 207 Va. 294, 149 S.E.2d 903.

Plaintiff’s decedent killed while attempting to enter highway from private driveway. Although defendant was negligent, plaintiff’s decedent guilty of contributory negligence as matter of law. Either he entered highway without stopping or if stopped, left vehicle protruding with front bumper into defendant’s lane. Failure to keep proper lookout.

1966 Phillips v. Stewart, 207 Va. 214, 148 S.E.2d 784.

Plaintiff pedestrian struck in crosswalk by defendant’s vehicle. Since plaintiff saw defendant’s car slow down some distance away, he justifiably thought it was going to stop; plaintiff was under no duty to keep it under continuous watch. Court erred in holding plaintiff contributorily negligent as matter of law.

1955 Vaughan v. Eatoon, 197 Va. 459, 89 S.E.2d 914.

Contributory negligence not established as matter of law from plaintiff’s testimony regarding speed and proximity of defendant’s oncoming vehicle. Her testimony consisted of mere estimates to be weighed by jury.

1955 Brown v. Damron, 197 Va. 309, 89 S.E.2d 54.

Plaintiff guilty of contributory negligence as matter of law. Plaintiff slowly entered highway in front of defendant’s tractor-trailer, failed to see truck, to take reasonable care to avoid colliding with it, to yield right of way.

1955 Nehi Bottling Co. v. Lambert, 196 Va. 949, 86 S.E.2d 156.

Contributory negligence on part of plaintiff presupposes negligence on part of defendant.

1954 Dodd v. Coakley, 195 Va. 554, 79 S.E.2d 648.

Burden of showing contributory negligence is on defendant, and it must be established either by defendant’s evidence or plaintiff’s evidence. Contributory negligence is not presumed.

1953 Tellis v. Traynham, 195 Va. 447, 78 S.E.2d 581.

Questions of plaintiff’s contributory negligence in intersection collision for jury. Facts disclosed that plaintiff heeded stop sign, saw defendant’s vehicle 500 feet away and figured his speed to be 25 mph, legal limit, and that in middle of road plaintiff saw defendant 150 to 200 feet away.

1953 Nolan v. City of Richmond, 194 Va. 943, 76 S.E.2d 126.

Plaintiff was not guilty of contributory negligence as matter of law where she endeavored to walk around defect in sidewalk and portion of sidewalk that she walked on proved to be defective also.

1951 Southern Ry. v. Callis, 193 Va. 28, 67 S.E.2d 879.

Plaintiff pedestrian struck by train. Plaintiff guilty of contributory negligence as should have seen or heard train coming in exercise of reasonable care for his own safety. Nothing to obstruct plaintiff’s view which would have tended to distract or to confuse him.

1950 Manhattan For Hire Car Corp. v. Williams, 191 Va. 489, 62 S.E.2d 10.

Plaintiff pedestrian was struck by defendant’s taxicab while he was attempting to walk diagonally across intersection at night. If plaintiff was in plain view of taxicab driver, then taxicab was in plain view of plaintiff, and if neither saw other, then both were guilty of negligence.

1950 Wray v. Norfolk & W. Ry., 191 Va. 212, 61 S.E.2d 65.

Garbage truck struck by train at railroad crossing. Defendant’s verdict upheld. Plaintiff’s decedent proceeded upon tracks at time when train was in full view and approaching less than 200 feet away at undiminished speed. Contributory negligence as matter of law as decedent was guilty of reckless disregard of all precautions for his own safety.

1950 Reams v. Cone, 190 Va. 835, 59 S.E.2d 87.

Failure of pedestrian to look when crossing street constitutes negligence as matter of law.

1946 Panther Coal Co. v. Looney, 185 Va. 758, 40 S.E.2d 298.

No person is entitled to recover from another for damages that have been occasioned by his own act or neglect.

1946 Andrews v. Chesapeake & Ohio Ry., 184 Va. 951, 37 S.E.2d 29.

Contributory negligence on part of injured party always implies negligence on part of person causing injury. Court cannot find plaintiff guilty of contributory negligence without also finding defendant guilty of negligence.

1945 Cooke v. Griggs, 183 Va. 851, 33 S.E.2d 764.

Contributory negligence as defense must be more than merely trivial, it must be contributing cause of accident.

1943 Beard v. Bryant, 181 Va. 739, 26 S.E.2d 61.

Where pedestrian has no reason to expect that truck would back towards him, fact that he is not looking in direction of backing vehicle does not establish contributory negligence.

1943 Vepco v. Evans, 181 Va. 274, 24 S.E.2d 446.

Contributory negligence exists as matter of law where motorist is familiar with railroad crossing, traffic condition ahead is open and obvious, visibility is poor and stops on tracks for period of about 30 seconds while traffic is congested in his lane and where he has alternative of pulling off tracks or backing up.

1942 Russell v. Kelly, 180 Va. 304, 23 S.E.2d 124.

Burden of proof on defendant unless it appears from plaintiff’s own testimony or other circumstances of case.

[7]

Passenger in Auto

2000 Rice v. Charles, 260 Va. 157, 532 S.E.2d 318.

In this wrongful death action, defendant claimed that guest was guilty of contributory negligence. Guest may be guilty of negligence if he knows or reasonably should know that driver had been drinking alcohol to an extent likely to effect manner of driving and voluntarily continues as passenger after reasonable opportunity to leave. As such, defendant must establish that his ability to operate was impaired and that passenger knew or should have known of that impairment. In this case, since there is no corroborating evidence, the defense was stricken.

1986 Arndt v. Russillo, 231 Va. 328, 343 S.E.2d 84.

Driver alleges negligence on part of passenger. No evidence that passenger carelessly remained in car of reckless driver after he had opportunity to get out.

1973 Peters v. Shortt, 214 Va. 399, 200 S.E.2d 547.

Only evidence as to condition of driver before accident, was that he appeared normal and in control, therefore, no basis for contributory negligence instruction.

1972 Monk v. Hess, 213 Va. 244, 191 S.E.2d 229.

Guest knew that driver was drinking; assumed risk.

1971 Leslie v. Nitz, 212 Va. 480, 184 S.E.2d 755.

Plaintiff was held to have assumed risk as matter of law because she knew that driver was under influence and there was no special exigency that compelled her to ride with him.

1971 Norfolk & W. Ry. v. Gilliam, 211 Va. 542, 178 S.E.2d 499.

Plaintiff was passenger in automobile and in better position to see approaching automobile than was driver. Plaintiff guilty of contributory negligence as matter of law.

1970 Biggs v. Martin, 210 Va. 630, 172 S.E.2d 767.

Plaintiff passenger contributorily negligent in failing to complain about driver stopping on roadway to pick up passenger.

1969 Terry v. Fagan, 209 Va. 642, 166 S.E.2d 254.

Plaintiff guest injured when defendant driver burned himself with cigarette ash and took hands off wheel, vehicle left highway and crashed into tree. Defendant had one drink of vodka prior to accident; plaintiff unaware of this. Plaintiff had no duty to take steering wheel. Not contributory negligence as matter of law.

1968 Major v. Hoppe, 209 Va. 193, 163 S.E.2d 164.

Passenger’s duty to observe is not co-extensive with driver’s. If passenger sees dangerous situation of which driver is unaware, then passenger is under duty to advise driver if practicable to do so.

1968 National Union Fire v. Bruce, 208 Va. 595, 159 S.E.2d 815.

Evidence of defendant driving without headlights as disclosed by plaintiff’s evidence and lack of protest by plaintiff comes close to being contributory negligence as matter of law. In this case it was possible that plaintiff did not have sufficient time to protest.

1967 Wright v. Tate, 208 Va. 291, 156 S.E.2d 562.

Plaintiff’s decedent guilty of contributory negligence as matter of law since he knew that defendant’s ability was impaired by alcohol and he refused opportunity to leave vehicle.

1967 Dickenson v. Tabb, 208 Va. 184, 156 S.E.2d 795.

To establish contributory negligence as matter of law on part of passenger, it must be shown that ability to drive was impaired and that passenger knew or should have known this.

1966 Meade v. Meade, 206 Va. 823, 147 S.E.2d 171.

Guest may be guilty of contributory negligence if he knew or should have known that driver’s ability was impaired as result of his drinking. Same applies in regard to defense of assumption of risk.

1966 Smith v. Prater, 206 Va. 693, 146 S.E.2d 179.

No evidence of driver’s ability being impaired due to alcohol consumption. Therefore, no contributory negligence or assumption of risk on part of passenger.

1965 Tomlin v. Worley, 206 Va. 344, 143 S.E.2d 866.

Evidence of defendant having consumed number of beers. No evidence of alcohol having affected defendant’s driving or other actions so as to put plaintiff (passenger) on notice. No basis for contributory negligence instruction.

1963 Mills v. Wells, 204 Va. 173, 129 S.E.2d 705.

Passenger is not required to exercise same degree of vigilance as driver but must only exercise reasonable care.

1963 Gilliland v. Singleton, 204 Va. 115, 129 S.E.2d 641.

Passenger has no duty to direct driver unless it is obvious that driver is taking no precautions for his safety.

1962 Bernard v. Bohanan, 203 Va. 372, 124 S.E.2d 191.

Plaintiff had no duty to warn driver since no proof that plaintiff had reason to think defendant was not acting as prudent driver.

1962 Arrington v. Graham, 203 Va. 310, 124 S.E.2d 199.

Plaintiff assumed risk as matter of law in riding with driver he knew to be unfit.

1961 Garnett v. Paul, 203 Va. 79, 122 S.E.2d 662.

Plaintiff alerted his driver of approaching vehicle. Plaintiff not guilty of contributory negligence.

1960 Diggs v. Lail, 201 Va. 871, 114 S.E.2d 743.

Plaintiff passenger in back seat. Defendant driver looked in back seat to talk with passengers and failed to keep eye on road. Plaintiff failed to warn defendant of danger ahead. Plaintiff was seated directly behind defendant. No contributory negligence.

1959 Miller v. Query, 201 Va. 193, 110 S.E.2d 198.

Discussion of joint enterprise wherein contributory negligence of driver imputable to passenger.

1959 Bates v. Thompson, 200 Va. 501, 106 S.E.2d 728.

Although driver had been drinking and plaintiff guest had knowledge of this fact, still, if it should be found by jury that defendant was not so intoxicated as to render him dangerous driver, plaintiff would not be guilty of contributory negligence.

1958 Hargrow v. Watson, 200 Va. 30, 104 S.E.2d 37.

Passenger may be guilty of contributory negligence where he fails to protest, where such protest would have been of some avail, if there is some apparent danger in way vehicle is being operated.

1957 Mann v. Norfolk & W. Ry., 199 Va. 604, 101 S.E.2d 535.

Plaintiff passenger in automobile was familiar with railroad crossing and was sitting on right side of vehicle; train was approaching from right. Plaintiff failed to exercise reasonable care in failing to warn driver of danger approaching. Contributory negligence as matter of law.

1957 Smith v. Tatum, 199 Va. 85, 97 S.E.2d 820.

Defendant was student driver in automobile where decedent was licensed driver. Jury issue as to contributory negligence of decedent, since it was uncertain as to who was actually in control.

1956 Virginia Transit Co. v. Simmons, 198 Va. 122, 92 S.E.2d 291.

Passenger is not required to exercise same degree of vigilance as driver.

1956 Ketchmark v. Lindauer, 198 Va. 42, 92 S.E.2d 286.

No evidence as to what passenger did to protect self. Burden of proof on defendant to prove contributory negligence. No evidence of contributory negligence.

1955 Newell v. Riggins, 197 Va. 490, 90 S.E.2d 150.

Contributory negligence of plaintiff guest not shown where there was nothing to indicate that defendant driver might drive negligently or fall asleep at wheel or that plaintiff knew of such possibility prior to accident.

1955 Garst v. Obenchain, 196 Va. 664, 85 S.E.2d 207.

Passenger has duty to take same precautions to avoid injury that reasonably prudent person would take.

1951 Steele v. Crocker, 191 Va. 873, 62 S.E.2d 850.

Plaintiff was guest in defendant’s vehicle. Defendant attempted to pass three snow plows during snow storm. Under circumstances, remonstrance might have resulted in more harm than good by creating hesitation or indecision as to his course, and there was ample evidence for jury to find that plaintiff was not guilty of contributory negligence.

1949 Butler v. Darden, 189 Va. 459, 53 S.E.2d 146.

Evidence held to show contributory negligence on part of guest passenger in automobile where he failed to look, listen, and warn his driver of approaching train which he saw or should have seen.

1948 Murray v. Smithson, 187 Va. 759, 48 S.E.2d 239.

Evidence indicated that plaintiff had insufficient time to warn of imminent accident.

1948 Waller v. Waller, 187 Va. 25, 46 S.E.2d 42.

Jury instruction quoted dealing with this issue.

1947 Masters v. Cardi, 186 Va. 261, 42 S.E.2d 203.

No negligence found on part of plaintiff passenger due to fact that she exercised no control over driver but still protested to driver about operation of car, which protest went unheeded.

1942 Russell v. Kelly, 180 Va. 304, 23 S.E.2d 124.

Discussion of contributory negligence of passenger in automobile. In absence of any intimation that car was being driven in improper manner, there was no duty to warn driver.

1942 Remine v. Whited, 180 Va. 1, 21 S.E.2d 743.

Because passenger saw approaching vehicle 250 feet away and said nothing does not equal contributory negligence because plaintiff had every reason to believe that driver would see other vehicle. Where passenger plaintiff has seen danger of which driver is apparently unaware, he must bring this to driver’s attention if able. Failure to do so constitutes contributory negligence.

[8]

Prior Knowledge

2001 City of Bedford v. Zimmerman, 262 Va. 81, 547 S.E.2d 211.

Electrician sued City alleging it was negligent in failing to turn off electrical power to temporary power meter base. Jury verdict in favor of plaintiff was upheld on grounds that issue of whether electrician was reasonable in cutting wires to base without ascertaining whether supply of electricity had been terminated was for jury to determine. In this case, City had admitted negligence in failing to turn off power. Plaintiff, in his experience as electrical subcontractor in City of Bedford, had never encountered a temporary meter base that was energized with power that did not have a meter in it or a cover on top of it and because of that, he felt confident that power had been turned off to this base. In addition, plaintiff had been told that power was turned off. Even though plaintiff testified that a Class B electrical contractor has duty to ascertain whether supply of electricity to wires has been terminated, jury in this case could find that plaintiff complied with his duty because City’s superintendent had informed him that source of power had been terminated.

1992 Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 419 S.E.2d 627.

Elderly plaintiff fell when she entered elevator when elevator floor depressed below hallway. Defendant claimed contributory negligence on part of plaintiff as matter of law, but color of carpeting and lighting and fact that plaintiff in hurry to push “open” button inside elevator are all facts that make issue of contributory negligence for jury, even though plaintiff testified that if looking down she could have seen depression.

1992 Holland v. Shively, 243 Va. 308, 415 S.E.2d 222.

Tenant not guilty of contributory negligence as a matter of law when she walks across porch that affords only practicable access to yard even though she knows porch in bad condition. Jury issue presented as to contributory negligence and assumption of risk.

1990 Ring v. Poelman, 240 Va. 323, 397 S.E.2d 824.

Jury question of contributory negligence was not presented in this auto accident case where there was no evidence of speed and no evidence that plaintiff knew or should have known that defendant was entering into her lane of traffic.

1990 Love v. Schmidt, 239 Va. 357, 389 S.E.2d 707.

Plaintiff sat on loose toilet seat, resulting in her falling off toilet. Not long before plaintiff sat on seat, three other women sat on it without mishap. Plaintiff was alleged to have prior knowledge of seat being loose. Plaintiff denied this. Whether plaintiff negligent in sitting on toilet seat that she knew was loose but which appeared to be positioned properly was jury issue.

1989 Clark v. Chapman, 238 Va. 655, 385 S.E.2d 885.

Plaintiff invitee in grocery store. She saw large cart 27 feet away. She returned to her shopping. She had no duty at this point to guard herself against being struck by cart. Contributory negligence not applicable.

1978 Reliable Stores v. Marsh, 218 Va. 1005, 243 S.E.2d 219.

Plaintiff walked into glass door marked with decals and aluminum frame. She was familiar with door. Contributory negligence as matter of law.

1973 District of Columbia v. Coleman, 214 Va. 12, 196 S.E.2d 926.

Plaintiff truck driver allowed body of dump truck to remain raised and it collided with overhead structure that he knew was in place. Contributory negligence as matter of law.

1967 Paytan v. Rowland, 208 Va. 24, 155 S.E.2d 36.

Tenant is not contributorily negligent as matter of law when she walks across porch that is only practicable access to backyard, even though she knows porch is in bad condition.

1957 Watson v. VEPCO, 199 Va. 570, 100 S.E.2d 774.

Plaintiff while installing pipe in ground, allowed it to come in contact with overhead electrical wire. Contributory negligence as matter of law.

1957 Flakne v. C. & P. Tel. Co., 199 Va. 31, 97 S.E.2d 650.

Plaintiff ran into guy wire from utility pole. Plaintiff had prior exposure to guy wire. Contributory negligence as matter of law.

1952 Pioneer Constr. Co. v. Hambrick, 193 Va. 685, 70 S.E.2d 302.

Plaintiff fell at night, into open trench which extended across city street. Plaintiff was bound to exercise reasonable care in view of all circumstances, including her previous knowledge of condition of street and darkness of night.

1951 Sadler v. Lynch, 192 Va. 344, 64 S.E.2d 664.

Plaintiff electrocuted by touching truck that had been electrified by power line. Plaintiff had been duly warned to stay away. Contributory negligence as matter of law.

1949 Hill v. City of Richmond, 189 Va. 576, 53 S.E.2d 810.

Plaintiff fell over slight depression in sidewalk with which he was familiar. He cannot recover if he knew of defect and fell because of forgetfulness or inattention, in absence of any reasonable excuse for being heedless.

1949 Norfolk & W. Ry. v. Epling, 189 Va. 551, 53 S.E.2d 817.

Train collides with truck at crossing. Plaintiff held guilty of contributory negligence. Railroad is proclamation of danger.

[9]

Walking

1983 City of Suffolk v. Hewitt, 226 Va. 20, 307 S.E.2d 444.

Plaintiff walked through unmarked door into dark area and fell down stairs. Court held that she was not guilty of contributory negligence as matter of law. Plaintiffs failure to look down while stepping forward is not contributory negligence as matter of law in every case.

1981 Colonial Nat. Gas Co. v. Sayers, 222 Va. 781, 284 S.E.2d 599.

There must be knowledge of risk involved before it can be voluntarily assumed. Plaintiff in this case did not know of depression in path.

1972 Tazewell Supply Co. v. Turner, 213 Va. 93, 189 S.E.2d 347.

Plaintiff tripped and fell over box left in grocery store aisle; box on floor in aisle was open and obvious danger. Plaintiff did not look but sister saw box and easily avoided it. Plaintiff guilty of contributory negligence as matter of law.

1970 Sykes v. Langley Cabs, Inc., 211 Va. 202, 176 S.E.2d 417.

Plaintiff alighted from cab on pier during dark and stormy night, fell off pier, and drowned. Evidence susceptible of several different interpretations, including contributory negligence of plaintiff. Error to strike evidence.

1949 Chesapeake & Ohio Ry. v. Marshall, 189 Va. 729, 54 S.E.2d 90.

Plaintiff’s decedent without looking or listening, stepped from door of warehouse to ground beside defendant’s railroad track and was struck almost immediately by yard engine. Contributory negligence as matter of law. Doctrine of last clear chance not applicable.

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