201 F2d 644 Bielasz v. Colder

201 F.2d 644




No. 6505.

United States Court of Appeals Fourth Circuit.

Argued January 14, 1953.

Decided January 27, 1953.

Samuel A. Steingold, Norfolk, Va. (Maurice Steingold, Norfolk, Va., on the brief), for appellant.

Leigh D. Williams, Norfolk, Va. (Williams, Cocke & Tunstall, Norfolk, Va., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.



This is an appeal by plaintiff from a judgment on a verdict for defendant in a personal injury case. Plaintiff was walking on a public highway in the nighttime when he was struck and injured by an automobile driven by defendant. Plaintiff contends that he was walking carefully along the left side of a highway near Norfolk, Virginia, when he was struck by defendant's automobile which was being negligently operated while passing at an excessive rate of speed another automobile traveling in the same direction. Defendant contends that he was operating his automobile carefully and at a moderate rate of speed and that plaintiff was struck because he was in the middle of the road in an intoxicated condition. Evidence was offered by both parties in support of their contentions, which were fully and fairly submitted to the jury in a comprehensive charge that authorized them to return a verdict for plaintiff on the last clear chance doctrine, even if they should find the plaintiff guilty of contributory negligence. The questions involved were simple questions of fact and the jury was correctly charged with respect to the familiar principles of law applicable thereto. Plaintiff complains because the jury was allowed to consider the question of contributory negligence and particularly the question of intoxication as bearing thereon; but there was ample evidence of contributory negligence and sufficient evidence of intoxication to justify the jury in giving consideration to that matter. There was no error and the judgment appealed from will be affirmed.