| Va. | Sep 23, 1926
delivered the opinion of the court.
The plaintiff in error, hereafter referred to as defendant, was, on the 12th day of September, 1925, indicted in the Circuit Court of Russell county for involuntary manslaughter. Upon trial he was found guilty and sentenced to confinement in the county jail for ninety
There was a demurrer to the indictment and very substantial reasons were urged before this court both in the oral argument and in the brief for sustaining the demurrer, but it nowhere appears from the record that the grounds of objection to the indictment made in this court were made in the trial court, and under Rule 22 the objections will not be considered here, especially as the ends of justice will be attained by a consideration of the only other ground of error which, it seems to us, it is necessary for us to consider, viz: That the verdict is contrary to the law and the evidence and is without credible evidence to support it.
Even if it be conceded that there is a material conflict in the evidence, the overwhelming weight of it is against the verdict of the jury apd in favor of the defendr apt but as we view the evidence the physical facts, which are undisputed, remove all conflict and contradict aPy and all evidence upon which the verdict could have rested, and leave it without credible support.
A fair statement of the case, treating the evidence as upon a demurrer, is as follows:
Shortly prior to the finding of the indictment the defendant and two of his uncles were in a Ford ear which the former was driving along the public road from the town of Clinchfield toward the town of Cleveland in Russell county. The road was about fifteen feet wide, exclusive of the ditches. The defendant was driving at a rate of speed of between twenty to twenty-five miles per hour, and while rounding a gradual curve where the range of vision was from two hundred to three hundred feet ahead, he met a Chevrolet car driven by one F. D. Hagy, with whom was one Thomas Caldwell, going in
The testimony of Lloyd Austin, a disinterested witness, is a fair example of all the testimony in the ease, with the.exception of Hagy and Caldwell. He says he examined the place where the accident occurred shortly after it happened; that he could tell from the signs, the car tracks and the physical evidence there in the road where the accident occurred the relative position of the ears at the time of the accident;,that the tracks showed that the Ford car driven by the defendant, Brooks, had gone into the upper or his right hand side of tbe road some distance fifteen or twenty feet back of the point where the collision occurred; that it showed that Brooks went as far to the right of the road as he could; that the signs and physical evidence showed where the collision
After the collision with the left front wheel driven back under the ear and locked, defendant lost control of his car and, as the testimony shows, it cut almost squarely across the road to the left, struck the deceased, Albert Smith, who was on the left hand side (defendant’s left) of the road to the rear of the Hagy car, and went over a ten foot bank. From the injuries received Smith died shortly thereafter.
The only conflict in the evidence is as to the location of the cars oh the road at the time of the collision. Hagy and Caldwell testified that the Hagy car was well over on the right hand side of the road and had almost come to a stop when the collision occurred and that the defendant had about nine feet of roadway between the Hagy car and the bank on his right through which to pass. They do not attempt to deny the existence of any of the physical facts testified to by all the other witnesses, nine in number, who were examined, and which support the testimony of the defendant and his two uncles as to the location of the car.
Some significance was given in the argument to a statement of Hagy that when defendant saw his (witness’) car he tried to cheek his car and it skidded and was wobbling, and that this sustains the charge of negligent driving. If it be conceded that defendant’s car was wobbling it could not have contributed to the collision and subsequent accident resulting in Smith’s death, because the collision is shown to have resulted from the relative position of the cars in the road, and the physical facets show that just before the collision and at the time of the collision the right wheels of defendant’s car were in the ditch on his right.
The indictment charges that defendant drove his ear at a speed in excess of that allowed by law, and operated it on the public road in a grossly careless, reckless and negligent way in so driving and operating it at the excessive rate of speed and feloniously did strike and
In the face of the uncontradicted physical facts we are not bound to accept as true the statements of Hagy and his companion that tbe defendant was driving in the middle of the road when he collided with the Hagy ear. If he was not doing this he was not driving carelessly or negligently.
In Norfolk and Western Ry. Co. v. Strickler, 118 Va. 153" court="Va." date_filed="1915-11-11" href="https://app.midpage.ai/document/norfolk--western-railway-co-v-strickler-6813203?utm_source=webapp" opinion_id="6813203">118 Va. 153, 86 S. E. 824, this court said: “This court has repeatedly declared that courts are not required to believe that which is contrary to human experience and the laws of nature or which they judicially know to be incredible. Though the case be heard as on a demurrer to the evidence, a court will not stultify itself by allowing a verdict to stand, although there may be evidence tending to support it, when the physical facts demonstrate such evidence to be untrue apd the verdict to be unjust and unsupported in law and fact.”
And in C. & O. Ry. Co. v. Anderson, 93 Va. 665, 25 S.E. 947" court="Va." date_filed="1896-10-05" href="https://app.midpage.ai/document/chesapeake--ohio-railway-co-v-anderson-6809591?utm_source=webapp" opinion_id="6809591">25 S. E. 947, it is said: “The act attributed to Brakeman Callaghan is shown by the evidence to be a physical impossibility. * * * It was pressed upon us with great earnestness that the ease is under the law to be considered as upon a demurrer to evidence; but that rule while it may and often does require us to accept as true that which is capable of proof, though the preponderance of evidence be ever so great against it, cannot compel us to accept as true what in the nature of things could not have occurred in the manner and under the circumstances narrated, and may be said therefore to be incapable of proof.”
See also the following cases: Harvey's Case, 103 Va.
For the reasons assigned we think the judgment of the trial court is erroneous and should be reversed and remanded for a new trial if the Commonwealth be so advised.
Beversed and remanded.