160 Va. 149 | Va. | 1933
Lead Opinion
delivered the opinion of the court.
Lorene Carlton, an infant, instituted this action, by her next friend, to recover damages for injuries received by her, growing out of a collision with an automobile which was being operated by J. J. Martin and Douglas Dodson. The case was tried by a jury and a verdict was returned in her favor for $500.00 against all of the defendants. The court upon the motion of the defendants set the verdict aside and entered final judgment in their favor. The grounds of the motion of the defendants to set aside the verdict were that it was contrary to the law and the evidence; that there was no evidence to support it; that the defendants were not guilty of-any actionable negligence; that the plaintiff was guilty of contributory negligence; that the instructions were improper; that the court erred in not permitting Mrs. Eva T. Martin to file an affidavit, under the statute, denying that she was operating the automobile ; and that the evidence failed to connect her with the injury in any way. The court in sustaining the motion of the defendants did not indicate which of the various grounds prompted its action in setting aside the verdict.
The facts, from the. standpoint of the plaintiff in error, are that she was seven years of age and a passenger on a
The negligence charged against the defendants in the notice was that they did negligently and recklessly operate their automobile and as a result the plaintiff was injured. In the bill of particulars filed, twelve grounds of negligence were specified. It is unnecessary to set them out in detail. The grounds specified are broad enough to embrace any negligence the defendants might have been guilty of under the evidence.
Upon the trial, J. J. Martin, one of the defendants, testified that he was the owner of the automobile; that he was not acting as agent for his co-defendant, Mrs. Eva T. Mar
During the progress of the trial, an affidavit was offered, in which it was denied that Mrs. Martin owned, controlled or operated the automobile, but the court refused to permit it to be filed at that stage of the case. This is made the basis of another assignment of cross-error. Another cross-error is assigned to the amendment of the defendant’s instruction C. These cross-assignments will be referred to later.
Whether the ruling of the court in setting aside the verdict of the jury was correct, necessitates an examination of the evidence to ascertain if it supports the verdict. The evidence discloses the facts which have been stated. They are the material facts and in the opinion of the court, they are sufficient to sustain the verdict.
It has been earnestly argued that the defendants were lawfully operating the automobile and that they were guilty of no negligence which proximately caused or contributed to the injury of the plaintiff in error. The jury reasonably could have concluded that the defendants in passing the bus, negligently drove their automobile too close to it. The evidence shows that they passed within three feet of it. The jury had the right to conclude, under the circumstances, that this was negligence proximately contributing to the injury.
It has been argued that the plaintiff in error was guilty of contributory negligence as a matter of law in running across the road without looking. She was seven years of age. Evidence of her capacity for contributory negligence was introduced. She appears to have been a child
The law recognizes that children of tender years do not possess that judgment and discretion usually exercised by adults, and whether under a particular state of facts they are capable of understanding and appreciating dangers with which they are surrounded depends, not only upon the age, general intelligence, maturity, and experience of the child, but also upon the nature of the perils to be encountered. The measure of duty in each case is determinable by the capacity ordinarily possessed and exercised by children of the age and development of the class to which the individual belongs. These general principles of the law are supported by numerous Virginia cases, among which are: Williams v. Lynchburg Tract., etc., Co., 142 Va. 425, 128 S. E. 732; N. & W. Ry. Co. v. Overton’s Adm’r, 111 Va. 716, 69 S. E. 1060; Richmond Traction Co. v. Wilkinson, 101 Va. 394, 43 S. E. 622; Lassiter & Co. v. Grimstead, 146 Va. 773, 132 S. E. 709; Blankenship v. C. & O. R. Co., 94 Va. 449, 27 S. E. 20.
The plaintiff’s capacity to be guilty of contributory negligence was properly submitted to the jury.
Code, section 2145 (14) a provides in substance that all motor vehicles, when about to pass any vehicle transporting school children, while it is not in motion, or it is either taking on or putting off any child or children, shall, if traveling faster than fifteen miles an hour, reduce its speed to fifteen miles an hour, or less, when within fifty feet of
This section discloses an intent on the part of the General Assembly to provide a safe place for school children in and around standing school busses and to require increased vigilance of automobile drivers while passing a bus discharging or taking on school children. If the statute which expresses that legislative policy is to be given any effect at all, it means that school children, while being discharged from or boarding a standing school bus in the highway, have a priority over drivers of automobiles. We do not mean that the driver of an automobile in passing a standing school bus, is an insurer, but we do mean that he must exercise that degree of care which the situation and circumstances demand in order to prevent injury to the children.
A school bus, while discharging or taking on school children, is a warning of danger to automobile drivers. They are afforded, by its very presence, knowledge that small children may run across the road in front of their approaching automobiles and they must operate their automobiles, with a degree of care commensurate with the danger to be encountered. The danger of injuring a child under such circumstances is increased and the care to be exercised by drivers of automobiles in preventing an .injury likewise is increased. These familiar general principles have been recognized by this court and the courts of many of the States.
What has been stated regarding the sufficiency of the evidence, applies only to the defendants, J. J. Martin and Douglas Dodson. It has no application whatever to Mrs. Eva T. Martin. At this point the cross-assignments of error must be considered.
Code, section 6126, is as follows: “Where a bill,
It is at once apparent that for the statute to apply, the “bill, declaration or other pleading” must allege that the “property or instrumentality” was “owned, operated, or controlled” by “any person or corporation.” If the bill, declaration or other pleading contains no such allegation, no affidavit denying ownership, operation or control is necessary or required.
The notice filed in the present case contained no specific allegation that Mrs. Eva T. Martin owned, operated or controlled the automobile involved here and consequently it was entirely proper for her counsel to introduce evidence showing that she did not own, operate or control the said automobile. The statute required no affidavit in this case. The court erroneously excluded this line of testimony which has been previously referred to.
Counsel for Mrs. Martin has this to say regarding the statute: “The purpose of the legislature should not be ignored. That purpose was to make it unnecessary to prove ownership or agency where ownership or agency is alleged, unless an affidavit is filed putting the matter in issue. The statute is a wise one, but it may not be invoked unless proper allegations are made. It was not the purpose of the statute to catch the unwary, but to obviate the necessity of proving matter which rests peculiarly in the possession of the defendants.” Counsel’s observation, in our judgment, clearly expresses the correct view.
The uncontradicted evidence clearly shows that Mrs. Martin was not the owner or operator of the automobile. It shows that she had no control of it and that the operators of it were not her agents and it also shows
What has been previously stated relating to the care required of automobile drivers when passing a standing school bus applies to the objection of the defendants in error to the action of the court in giving any instructions on behalf of the plaintiff in error and to amending instruction C offered on behalf of the defendants in error. There is no reversible error in any of the instructions.
The judgment of the trial court is reversed and the verdict of the jury is reinstated as to the defendants in error, J. J. Martin and Douglas Dodson, and final judgment is now entered against them upon the verdict in favor of the plaintiff in error. Final judgment will also be entered in favor of the defendant in error, Mrs. Eva T. Martin.
Reversed.
Dissenting Opinion
dissenting:
I find no error in the judgment of the trial court. I am of opinion that the only act of negligence which the evidence even tends to show is that the driver of the Martin car may have been running in excess of fifteen miles an hour, and between fifteen and twenty miles an hour. But assuming that the speed of the Martin car was as much as twenty miles an hour, the evidence, I think, shows that