¶1dissenting.
¶2The trial court told the jury in effect by Instruction No. 10 that it was not negligence as a matter of law to walk on the right-hand shoulder of the road, but whether it was negligence in fact was a question for the jury.
¶3The majority opinion holds that it was negligence as a matter of law; that is, that the plaintiff violated section 2154 (126) (g) of the Code (Acts, 1944, ch. 388, p. 616) in walking on the right shoulder of the road.
¶4I disagree with that conclusion because I do not think the statute should be so construed. We did not so construe it in Stuart v. Coates, 186 Va. 227, 42 S. E. (2d) 311, decided last year. It is true the facts there were different, but the statute under construction was the same. This decision holds that the word “highway” in the statute has a different meaning in this case from what we said it meant in the Coates Case. I think it means the same thing in both cases and that its meaning should not be varied to fit different facts.
¶5The same statute was in effect then as now. It provides that if there are proper sidewalks to walk on, the pedestrian shall use them; but if not, and he is obliged to use the highway, he shall keep as near as reasonably possible to the extreme left side or edge of the highway.
¶6The pedestrian in the Coates Case was walking, she said, on her left edge of the hard surface. The hard surface was 20 feet wide. There was a shoulder to her left six feet wide, level and usable. The contention was that in walking on the hard surface instead of the shoulder the pedestrian was *172guilty of negligence as a matter of law. The trial court instructed the jury that the pedestrian complied with the law by walking on the edge of the hard surface. We said that was right; that we had indicated as much previously in the cases of Catron v. Birchfield, 159 Va. 60, 165 S. E. 499; Crawford v. Hite, 176 Va. 69, 10 S. E. (2d) 561; and, South Hill Motor Co. v. Gordon, 172 Va. 193, 200 S. E. 637.
¶7We said there that section 2154 (112) of the Code requires the motorist to drive on the right half of the “highway,” which was commonly accepted as meaning the right half, of the hard surface, where there is one; and that there was nothing to indicate, and no reason to suppose, that “highway” as used in section 2154 (126) (g) means something else for the pedestrian.
¶8If “highway” in section 2154 (126) (g) includes shoulders, it includes shoulders on both sides, and pedestrians would not comply with the law by walking on the left edge of the hard surface. They would have to walk on the left edge of the shoulder, or the left edge of the slope beyond the shoulder, or on out to the edge of the right of way if usable for vehicular travel. There is no more basis for including shoulders than for including the rest of the right of way where traffic may use it.
¶9If “highway” includes shoulders and slopes in section 2154 (126) (g), it should, for the same reason, include shoulders and slopes in section 2154 (112), requiring automobiles to be driven “upon the right half of the highway.” Using the right half of the hard surface in that event would violate that statute if the shoulders were of unequal width.
¶10Unless “highway” in section 2154 (126) (g) includes shoulders and slopes on both sides of the pavement, then the pedestrian in this case violated no statute in walking on the right shoulder of the road.
¶11In the court’s opinion the definition of “highway” as given in section 2154(49) (f), is stressed and it is said that the true test is whether the way or place of whatever nature is open to the use of the public for purposes of vehicular *173travel, and “no exception is made as to the shoulders or slopes of a way.”
¶12The right of way in this case was 80 feet wide. From the edge of the pavement to the ditch was 14 feet. Six feet of that was gravel and eight feet was grass. All of it was level. If “highway” includes shoulders and slopes, then the fight half of the highway for the automobile under section 2154(112) would be determined by the ditch lines, not by the hard surface; and under section 2154(126) (g) the pedestrian could not walk on the left edge of the hard surface, as held in the Coates Case; nor yet on the left shoulder, but he must walk at the ditch line to escape being negligent as a matter of law, because the ditch line only would be “the extreme left side or edge of the highway.”
¶13The purpose of section 2154(49) (f) was not, I think, to define the area within the right of way lines that should be used by the automobile and the pedestrian, but to distinguish “highway” as used in the Motor Vehicle Code from a “private road or driveway,” as illustrated by Morris v. Dame, 161 Va. 545, 555, 171 S. E. 662.
¶14Both the sections of the Motor Vehicle Code regulating automobile and pedestrian travel, and various opinions of this court, coincide with what I believe is the popular notion that “highway” means the hard surface where the way is paved.
¶15The driver of an automobile who hears the approach of a police or fire department vehicle would doubtless think he was complying with section 2154(125) by driving to the edge of the pavement, rather than to the edge of the shoulder or slope.
¶16A driver who enters from the side a “highway” which is part of the State highway system, would suppose he was complying with section 2154(132) by stopping immediately before entering on the hard surface rather than before entering the right of way.
¶17The driver who pulls off of the hard surface before stopping his car has heretofore been accustomed to believe he was complying with section 2154(133) prohibiting stop*174ping in such way as to render dangerous the use of the “highway” by others.
¶18In South Hill Motor Co. v. Gordon, supra,172 Va. 193, 199, 200 S. E. 637, 640, the pedestrian who was injured “was so near to the left-hand edge of the hard surface that two steps would have put him on the shoulder of the road, where the car would have cleared him.” It was said there that “the highway in the vicinity of the scene of the accident is eighteen feet wide with a six-foot dirt shoulder on each side.” (Emphasis added).
¶19It was not suggested in the carefully considered opinion in that case, dealing with all the statutes here involved, that such act was contributory negligence as a matter of law, but the plaintiff was not allowed to recover because he held to his position in spite of his obvious danger from the approaching automobile. We said there that the Motor Vehicle Code recognizes the right of both the pedestrian and the operator of a vehicle to use the highway for travel, and that “under normal conditions the pedestrian must keep as near as reasonably possible to the extreme left side or edge of the highway, and the operator of a motor vehicle must drive upon his right half of the highway.” 172 Va. 203, 200 S. E. 642.
¶20The court’s construction of the statute seems to be influenced by what is considered the safer thing for the pedestrian. That is a question that is more properly for legislative consideration. Also, it is open to doubt whether the holding will better prevent accidents. This pedestrian came to the highway from the south side. He lived on the same side, four or five blocks to the east. Traffic was heavy that evening and the cars were running fast. Yet, it is held that he was negligent as a matter of law in staying on the south side, on the shoulder, without, as the opinion says, any “reason to assume that the automobile would not stay upon the paved portion.” To escape being negligent as a matter of law, he is now required to cross to the north side, where he could walk on the edge of the pavement if Stuart *175v. Coates, supra,is still the law, and then cross again to the south side when he got opposite his home.
¶21In many places friends live a few feet apart on the same side of a State highway, with their yards abutting on the right of way. Under this decision the neighbor on the left must cross to the opposite side of the highway, proceed on his left to opposite his neighbor’s front gate, then cross the highway again to enter his neighbor’s yard. Otherwise, he will be guüty of negligence as a matter of law, and, besides that, he will be committing a misdemeanor, because a fine awaits him each time he walks on the right shoulder of the road (section 2154(126) (i) ), although that shoulder may be wider than the paved surface.
¶22I think that where there is an ample pavement “for the purposes of vehicular travel,” as in this case, we should not say a pedestrian is guilty of negligence as a matter of law when he walks on the right shoulder or slope of the road, not on the pavement, and that we should leave the question of his negligence in doing so to be determined as a matter of fact, as did the trial court in this case.