dissenting.
I agree with the majority opinion wherein it holds that the instruction attempting to employ the last clear chance doctrine was erroneous, and further that the facts do not present a last clear chance question. In my view therefore the case should be reversed and remanded for a new trial.
I cannot agree that the plaintiff was guilty of contributory negligence as a matter of law.
The plaintiff was an elderly woman, in good physical condition. She testified that she had lived on the highway near the point of accident since the road was built and was fully aware of the prevailing traffic conditions. She had walked on the curb beyond the wide mouth of the intersection to a point where the street was only 49 feet in width and where the crossing could ordinarily be safely negotiated.
The majority opinion concedes: “We do not think she was disobedient to the command of the statute (§ 46-243) to the point of being negligent when she went beyond the five-point intersection to where she would have only one street to cross instead of the area upon which traffic converged from five directions.”
Admittedly, plaintiff went to a logical point to attempt the crossing. After looking twice in both directions and seeing no approaching traffic she started across the road at right angles “as fast as she could go”. Her vision to the south, the direction from whence the defendant’s car approached, was *842clear for a distance of 600 feet, and when plaintiff started to cross the car had not come into view. Under these circumstances she had a right reasonably to believe that she could make the crossing in safety. She knew that she was in a 25-mile zone and had the right to assume that motorists would obey this positive law. Keeler v. Baumgardner, 161 Va. 507, 171 S. E. 592; Harris Motor Lines v. Green, 184 Va. 984, 37 S. E. (2d) 4; Millard v. Cohen, 187 Va. 44, 46 S. E. (2d) 2; Hardiman, et al. v. Dyson, 194 Va. 116, 72 S. E. (2d) 361.
It is clear that had the defendant been driving within the speed limit of 25 miles per hour, instead of 50 miles per hour as disclosed by the evidence, the plaintiff could have safely crossed with time to spare.
As the learned author of the majority opinion said in Rhoades v. Meadows, 189 Va. 558, 563, 54 S. E. (2d) 123, 125:
“The mathematics of the problem show that if the defendant had been approaching lawfully, plaintiff would not have been mistaken in thinking it was safe to cross. If she had proceeded at an average walk, and he had been running 50 miles an hour, he would still have been some distance from her when she completed the crossing. It was, we think, a question of fact and not of law whether she failed to exercise reasonable care.”
The same logical reasoning applies with greater force to the case at bar.
The cases cited in the majority opinion holding that it was negligence as a matter of law for the plaintiff involved to fail to look to the right for approaching traffic before attempting to cross the last half of the streets there involved, are readily distinguishable from the instant case. In those cases the pedestrians were attempting to cross the street at a time when traffic was heavy and cars, in plain view, were passing in both directions.
When Mrs. Goolsby undertook to make the crossing no cars were in sight and “traffic was remarkably light”. Ad*843mittedly, the defendant’s car was not in sight and was more than 600 feet away. Under such circumstances we should not hold that she was guilty of contributory negligence as a matter of law because she failed to look again before undertaking to cross the remaining half of the street. In my view, the question presented a factual issue for the jury.
Under the circumstances existing, ordinary care did not impose upon Mrs. Goolsby the duty to be continuously looking to ascertain if cars were approaching under penalty that in failing to do so, if injured, her negligence must be conclusively presumed. Ebel v. Traylor, 158 Va. 557, 562, 164 S. E. 721; Smith v. Va. Ry. & P. Co., 144 Va. 169, 131 S. E. 440.
“The law does not require a person to know that he is absolutely safe before taking a given course of action * * *; he is only required to exercise ordinary care to avoid accident-such care as a reasonably prudent person would exercise under like circumstances.” Norfolk & P. Co. v. Forrest, 109 Va. 658, 668, 64 S. E. 1034, 1038; Newport News &c. Co. v. Bradford, 99 Va. 117, 37 S. E. 807.
I cannot escape the conclusion that the question of whether or not plaintiff was contributorily negligent on this occasion presented a factual issue and that the majority opinion holding to the contrary is invading the province of the jury. We should measure contributory negligence by the familiar rule, long adhered to by us, that the question is for the jury unless the evidence is such that there should be no difference in the judgment of reasonable men as to the proper inferences to be drawn therefrom. Hoover v. Neff & Son, 183 Va. 56, 62, 63, 31 S. E. (2d) 265, 268; Edgerton v. Norfolk Southern Bus Corp., 187 Va. 642, 651, 47 S. E. (2d) 409, 415; Hooker v. Hancock, 188 Va. 345, 355, 49 S. E. (2d) 711, 715; Rhoades v. Meadows, supra, 189 Va., at page 561, 54 S. E. (2d), at page 124.
Hudgins, C.J., and Spratley, J., join in this dissent.