Present:   All the Justices

HOWELL RUSS

v. Record No. 030892   OPINION BY JUSTICE CYNHTIA D. KINSER
                                       March 5, 2004
JAMES DESTIVAL

            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Leslie M. Alden, Judge


     The sole question in this appeal is whether a jury

instruction stating that a bicyclist has a duty to refrain

from entering or crossing an intersection in disregard of

“close or approaching” traffic is an inaccurate statement

of law.    In light of the plain terms of Code § 46.2-924(B),

we answer that question in the affirmative and thus

conclude that the circuit court erred in granting the

instruction.

     Howell Russ, the appellant, filed a motion for

judgment against James Destival, the appellee, claiming

damages for personal injuries allegedly sustained as a

result of an accident that occurred at the intersection

between Braddock Road and Prestwick Drive in Fairfax

County.    Russ was riding a bicycle westbound along a path

that runs adjacent to Braddock Road and, as he proceeded
across Prestwick Drive, he was struck by an automobile

driven by Destival.1

        Braddock Road is a four-lane highway divided by a

median strip.      Prestwick Drive is a two-lane street that

provides ingress and egress to a residential neighborhood

and has a posted speed limit, according to Russ, of 25

miles per hour.      As Destival traveled along Prestwick Drive

and approached the intersection between these two roads, he

came to a stop sign and white “stop line” at the end of

Prestwick Drive.      According to his trial testimony,

Destival stopped his vehicle behind the white line but then

“eased” his vehicle forward, beyond the white line, to

within six to eight feet of the eastbound lanes of Braddock

Road in order to see oncoming traffic more clearly.       He

intended to turn left and proceed westbound on Braddock

Road.       When he accelerated forward to cross the eastbound

lanes to the median, he heard a yell and a “large thud.”

Destival admitted that he never saw Russ before the impact.

        Russ testified that, as he approached the intersection

in question, he saw Destival’s vehicle come to a stop

beyond the white line “but not in the path of the bike

path.”      He stated that Destival’s vehicle “roll[ed] through


        1
       Russ was towing a trailer in which his three-year-old
son was riding.

                                  2
the stop sign and stop[ped] just before the end of the bike

path.”   Russ admitted that he never stopped his bicycle

before crossing Prestwick Drive in front of Destival’s

vehicle.

     During argument on jury instructions, Destival offered

Jury Instruction Q, which stated:

          A bicyclist has a duty to use ordinary care when
     he is riding on or crossing the hard surface of a
     highway:

            (1)   to keep a lookout for motor vehicles;

            (2)   to refrain from entering or crossing an
                  intersection or the hard surface of a
                  highway in disregard of traffic which is
                  close or approaching in such a manner that a
                  reasonable person would not attempt to enter
                  or cross; and

            (3)   to step or move from his course into a place
                  of safety if it reasonably appears to him
                  that he is in danger of being struck by a
                  motor vehicle.

          If a bicyclist fails to perform any one or more
     of these duties, then he is negligent.

Destival had modified the instruction from its original

version to include the word “close” in subsection 2.      The

circuit court granted the jury instruction over Russ’

objection, and the jury returned a verdict in favor of

Destival.

     Russ filed a motion to set aside the jury verdict and

enter judgment in his favor, or in the alternative, to



                                3
grant him a new trial.   The circuit court denied Russ’

motion.   This Court granted Russ an appeal limited to the

following assignment of error:

          The court erred in its rulings regarding the jury
     instructions on the appropriate law, and further in
     failing to grant the plaintiff judgment
     notwithstanding the verdict on these grounds.

          A. The court erred when it approved defendant’s
     Instruction Q, as modified by the defendant, as it was
     an inaccurate and misleading statement of Virginia
     law.

     As Destival correctly argues, the sole issue before us

is whether Instruction Q was a correct statement of

Virginia law.   Any question about whether that instruction

was applicable to the facts of this case is not encompassed

within the assignment of error.    Thus, we will confine this

opinion to the narrow issue raised by Russ’ assignment of

error.    See Wolfe v. Board of Zoning Appeals, 260 Va. 7,

14-15, 532 S.E.2d 621, 624-25 (2000) (we do not consider

arguments that are not the subject of an assignment of

error).

     Russ’ contention that Instruction Q was an inaccurate

statement of law focuses on the insertion of the word

“close” in subsection 2.   He contends that the instruction

as modified altered the provisions of Code § 46.2-924

establishing a pedestrian’s right-of-way and that the jury




                               4
was thus presented with an inaccurate legal standard

regarding his duty of care.

     The relevant provisions of Code § 46.2-904 state that

“[a] person riding a bicycle . . . on a sidewalk, shared-

use path, or across a roadway on a crosswalk, shall have

all the rights and duties of a pedestrian under the same

circumstances.”2   A pedestrian’s right-of-way vis-à-vis a

vehicle is set forth in Code § 46.2-924(A):

          A. The driver of any vehicle on a highway shall
     yield the right-of-way to any pedestrian crossing such
     highway:

          1. At any clearly marked crosswalk, whether at
     mid-block or at the end of any block;[3]

          2. At any regular pedestrian crossing included in
     the prolongation of the lateral boundary lines of the
     adjacent sidewalk at the end of a block;

           3. At any intersection when the driver is
     approaching on a highway or street where the legal
     maximum speed does not exceed thirty-five miles per
     hour.

     2
       In light of the statute, we will use the terms
“bicyclist” and “pedestrian” interchangeably.
     The term “crosswalk” is defined as “that part of a
roadway at an intersection included within the connections
of the lateral lines of the sidewalks on opposite sides of
the highway measured from the curbs or, in the absence of
curbs, from the edges of the traversable roadway; or any
portion of a roadway at an intersection or elsewhere
distinctly indicated for pedestrian crossing by lines or
other markings on the surface.” Code § 46.2-100.
     3
       The pictures introduced into evidence demonstrate
that there was not a marked crosswalk at the intersection
of Braddock Road and Prestwick Drive.



                              5
However, Code § 46.2-924(B) states, in pertinent part, that

“[n]o pedestrian shall enter or cross an intersection in

disregard of approaching traffic.”   This latter provision

is determinant of the issue in this appeal.

     Subsection 2 of Instruction Q informed the jury that a

bicyclist has a duty to refrain from entering or crossing

an intersection in disregard of traffic that is either

“close or approaching.”    The addition of the word “close”

altered the statutory duty of a bicyclist.    The provisions

of Code § 46.2-924(B) require a bicyclist to refrain from

entering or crossing an intersection in disregard of

“approaching traffic.”    The statute does not include

traffic that is “close.”   To state in a jury instruction

that a bicyclist must refrain from entering or crossing an

intersection in disregard of traffic that is “close,” i.e.,

stopped, runs afoul of the plain terms of Code § 46.2-

924(B) and a pedestrian’s right-of-way established in

subsection A of that statute.

     Contrary to Destival’s argument, this Court’s

decisions in which we have used words such as “near,” “in

close proximity,” “close,” or “dangerously near” in

describing those vehicles that a pedestrian should see and

heed do not support a different result.   In Hopson v.



                                6
Goolsby, 196 Va. 832, 839, 86 S.E.2d 149, 153 (1955)

(quoting Hooker v. Hancock, 188 Va. 345, 356, 49 S.E.2d

711, 716 (1948)), we stated that “if a person having a duty

to look ‘carelessly undertakes to cross without looking,

or, if looking, 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 a matter of law.’ ”

Accord Carson v. LeBlanc, 245 Va. 135, 140, 427 S.E.2d 189,

192 (1993); Cofield v. Nuckles, 239 Va. 186, 190, 387

S.E.2d 493, 495 (1990); Straughan v. Nash, 215 Va. 627,

632, 212 S.E.2d 280, 283 (1975).   Elaborating on a

pedestrian’s duty to keep a lookout for vehicles, we

explained that “[t]he duty of looking is based on the

wisdom of seeing whether traffic is approaching, where and

at what speed” and “[i]f looking discloses approaching

traffic, then the right to proceed is to be tested by

whether a person of ordinary prudence would attempt it.”

Hopson, 196 Va. at 839, 86 S.E.2d at 153 (citing Rhoades v.

Meadows, 189 Va. 558, 562, 54 S.E.2d 123, 125 (1949)).

These cases and the others cited by Destival emphasizing a

pedestrian’s duty to see and heed “approaching” traffic are

consistent with the directive in Code § 46.2-924(B)

requiring a pedestrian not to enter or cross an




                             7
intersection in disregard of “approaching traffic.”   They

do not alter a pedestrian’s duty in that instance.

     Thus, we hold that Instruction Q was not an accurate

statement of Virginia law and that the circuit court erred

in giving the instruction to the jury.4   Accordingly, we

will reverse the judgment of the circuit court and remand

this case for further proceedings.

                                     Reversed and remanded.




     4
       We express no opinion regarding whether Instruction Q
without the modification applies to the facts of this case
or whether, in a new trial, the circuit court should give
such an instruction to the jury.

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