130 Va. 392 | Va. | 1921
delivered the opinion of the court.
This action was brought by the defendant, in error, an infant under the age of twelve years, suing by his next friend, against the plaintiffs in error to recover damages for an injury to the right arm of the plaintiff, alleged to be due to the negligence of the defendants.
The trial resulted in a verdict for the plaintiff for $7,542.85, upon which the judgment under review was rendered. The pertinent facts, and the circumstances under which the injury complained of was suffered, are as follows:
The appellants, A. H. Judy and W. G. Keckler (defendants in the trial court) operated a farm in Stafford county, under a partnership arrangement. In the discharge of certain duties in connection with the farming operations, W. G. Keckler came to Fredericksburg on August 23, 1919, in a Ford auto-truck. While in town, he purchased for the use of the farm three mowing machine blades, which he placed in the body of the truck. Two of these blades were sixty-five inches long, and the third one seventy-seven inches long.
A mowing machine blade, according to the description given, is a piece of tough steel from sixty-five to seventy-seven inches, or more, in length, about five-sixteenths of an inch thick, and seven-eighths of an inch wide. In this strip, holes are drilled and sections riveted thereon. These sections have one blunt end, are about three inches wide at the base, and are in the shape of the following figure:
The edges of the sections are beveled, and' ground very sharp. Ordinarily about twenty-four of these sections are riveted on a six foot blade.
“At the end of the blade that is constructed to fit into the pitman is a ball, part of the ball and socket joint, the socket being on the end of the pitman.” This end of the blade is called the knuckle end.
According to the testimony, the defendant, Keckler, placed these blades in his truck body, piled the one on the other, with the sharp edges of the sections exposed. The knuckle ends were in the forward left-hand corner of the body, and the other ends in the rear right-hand corner, “ the blades being thus diagonally across the said body, and projecting from the rear.” The extent of this projection is stated in varying terms. Averaging these statements, it may be said with substantial accuracy that the blades projected from eighteen, to twenty inches beyond the tail end of the truck body. The box constituting the rear end of the truck was fifty-four inches long, thirty-four inches wide, and five inches deep, the bottom of this body being thirty-three inches from the ground, and projecting backward over the rear axle twenty-eight inches. Having loaded the loose blades upon his truck in the fashion described, Keckler proceeded by various streets to Caroline street, also called Main street, and the principal street of the city. He proceeded southward along this street to about the middle of the block, and parked his car at an angle of about forty-five degrees to the curb line, with his front wheels against the curb. The relative location to the curbing of the truck, and of the projecting blade ends, with their sharp' cutting edges facing the street, are given in the following figure,
The truck was parked between two cars, “quite a large one being on the upper side of the truck, which to one coming down the street, obscured in part the view of the truck.” There was very little space between the truck and the car next down the street, and about thrfee feet between it and the car next above, and up the street. These cars were parked at about the same angle as the Ford truck.
On the left side of Caroline street — that is, the east side —and opposite from, and slightly below the place where the truck was parked, was a pile of brick and other debris in the street. A Ford sedan was parked near this rubbish heap, and extending into the street further than it should have done. This rubbish heap and sedan so obtruded upon the street that when cars were parked on the opposing side, as was the case at the time of the accident, the street was reduced to a mere alley-way for a short distance, so much narrowed indeed that in this “throttle” two cars could not pass.
Having parked his car ;as described' supra, Mr. Keckler left the same unattended, and went off to purchase a pair of shoes. Coming now to the immediate circumstances of the accident, and the conduct of the plaintiff, it appears that the latter was riding a bicycle slowly and carefully down Main, or Caroline street. Behind the boy was a motor car, also going down Main street. In front of the boy, coming-up Main street, and approaching the “throttle,” were two motor cars. The front car stopped in, or just at the mouth of, the “throttle.” This action caused the second car to turn
I was looking at the time up Main street for some reason, when this boy came riding down the street on a bicycle, and it appears the way was blocked, so that the boy could not get through, and I saw him turn in, go towards the sidewalk with his bicycle, and strike these blades. * * *
Q. What caused young Doyle to turn in towards the car with the blades in it?
A. The street was blocked, he couldn’t help himself, it was the only salvation he had, he thought there was an opening he could get thru to the side-walk. The streét was blocked with another team, or an automobile, I couldn’t say which.
Q. And you say he turned to the right to avoid the approaching car?
A. Yes, sir.
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Q. Did you see the boy when he turned in to escape this jam?
A. Yes sir.
Q. At what speed?
A. Not very fast, just creeping, moseying along.
*399 Q. How far was the car from him, that is the car going in the opposite direction, when he turned in?
A. Right about behind me — might have been down Main a little, it was right close to me.
Q. How many car lengths from him?
A. About one car length.
Q. Tell the jury the exact position of the boy and his wheel at. the time he was cut.
A. He turned in, these blades sticking out in this way (indicating) extending behind the car, and came in contact with the blades when he turned, and of course sticking that way, the impaction with these blades severed the arteries in the boy’s- arm.
Q. From what you saw, please state whether or not young Doyle lost control of his machine before he struck the blades.
A. I don’t think so.
Henry Satterwhite, another eye witness of the accident, testifies in part as follows:
Q. Just before he came in contact with the blades, in which direction was he looking, and what did he appear to be looking at?
A. At the cars that 'were coming towards him, and down Main street.
Q. And then what did he do ?
A. He got up close to the car, he was pretty close to the cars that were parked on the right-hand side of Main street.
Q. What did he do just before he came in contact with the blades ?
A. He must have put on his brakes, he slid down and lurched into the car.
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Q. Did he lose control of his wheel, as far as you were able to observe?
*400 A. I don’t think he did. He stopped it because he was in a close place. I am sure he did not lose control of his wheel, because when he stopped his wheel he lurched to the right side, and went to put his feet down and catch' himself.
Q. And it was' then he came in contact with the blades ?
A. Yes, sir.
Cross-Examination.
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Q. Could the little man have seen these blades if he had been observant?
A. I don’t think anybody would have noticed them, if they had been in the place he was in.
Q. What was that?
A. Because when you are in a close place, you are not looking on the right hand side, you are looking out at what is in front, and trying to get out of the way.
Q. His attention then seems to have been occupied with the oncoming vehicle, and not with the truck?
A. Ño, sir, I do not think he could have paid any atten- • tion to the standing truck with.the car coming right towards him.
Q. When his wheel stopped you say it kind of turned to the right?
A. It lurched to the right.
Q. That is the whole ,wheel would have fallen to the ground if he had not been on it?
A. It would have fallen, but when anybody goes to stop a wheel, they always lurch to the right, and put their foot dbwn to catch themselves.
Doctor C. Mason Smith, describing the injuries suffered by the plaintiff, states that the large artery in the arm, called the brachial artery, and all the veins in the front of the arm, and the nerves, were severed, also the biceps muscle and tendon. In the opinion of Dr. S. L. Scott, a
The boy’s right forearm is smaller than the left, the hand and fingers of that arm are smaller, the arm itself a little crooked and the second, third, fourth and fifth fingers of the hand are contracted.
The defendants filed six bills of exceptions in the progress of the trial. The first three exceptions related to certain testimony offered by the defendants and excluded by the court.
This testimony undertook to establish “the usual manner in Virginia — and in the Fredericksburg community — in which careful and prudent farmers transport mower blades from the retail stores to their farms, and that the method of transportation adopted by defendants with the blades in question was similar.”
Apart from other objections that might be made to this testimony, it was plainly irrelevant.
“This is the test of liability, but when liability has been established, the extent is to be measured by the natural consequences of the negligent, or wrongful act. The precise injury need not have been anticipated. It is enough if the act is such that the party ought to have anticipated that it was liable to result in injury to others.”
See also, to the same effect, the case of Tripp v. City of Norfolk, 129 Va. 566, 106 S. E. 360, and the cases therein cited.
The question presented in this case is whether the defendants used reasonable care and skill in the exercise of the lawful right to occupy the street. Certainly upon the facts presented, reasonable, fair minded men, to say the least, might differ over the question of the exercise of rea
First, whether the defendants, in respect of parking and leaving their truck under the circumstances disclosed, failed to use ordinary care.
Second, if the jury considered that the defendants did fail in this respect, whether such failure on their part was the proximate cause of the plaintiff’s injury.
Third, whether the injury sustained by the plaintiff was sustained on his part while exercising such a degree of care and caution as under the circumstances might reasonably be expected from one of his age and intelligence.
But the trial court found itself unable to make this ascertainment of remoteness, and instructed the jury to determine from the evidence whether the defendants failed to exercise ordinary care, and whether this failure, if it took place, was the proximate cause of the plaintiff’s inr jury. • This action of the court, as heretofore noted, was proper, under the circumstances, and in no wise to the prejudice of the defendants.. “The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science, or legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it.” Railway Co. v. Kellogg, 94 U. S. p. 469, 24 L. Ed. 256. The outstanding facts of this case are first, the failure of the defendants to use reasonable skill and care in the exercise of the lawful right to occupy the street; second, the resulting injury to the plaintiff through no fault of his, while lawfully using the same thoroughfare.
The instructions given by the court covered all the necessary features of the case, and fully and accurately presented the law to which the parties were respectively entitled. Neither in the instructions given, nor in the instructions refused, do we find error.
It is not considered that the facts of the instant case justify such a conclusion.
We find no error in the action of the trial court, and the judgment complained of is affirmed.
Affirmed.