182 Va. 701 | Va. | 1944
delivered the opinion of the court.
The accident which is the subject of this suit happened in Dickenson County between 5 and 6 o’clock in the afternoon of June 21 st, 1942. It was on a state highway which passes near a settlement called Sand Lick. There is a combination store and restaurant at the place which is operated by Cowan Edwards. He resides with his family in the same building which is between 40 and 50 feet from the highway. A filling station is located between the building and the highway and what is known as the Jerry Stinson House is opposite the store across the highway about 40 feet. There are two
The plaintiff in the trial court was Johnnie Anderson, an infant, four years old, who sued by his next friend, who was his father. The defendants were W. H. Sheckler, W. H. Sheckler, Jr. and Flora Sheckler. The latter was dismissed from the suit as a party defendant, and there was a verdict of a jury, sustained by the court, against the remaining defendants for the sum of $600.00. The judgment against W. H. Sheckler, Jr., was set aside when it appeared that he was under the age of 21 years and that no guardian ad litem had been appointed to represent him.
A writ of error was allowed the defendant, hence the case is before us. The evidence presents some conflict upon important points. It must be stated in the most favorable light to the plaintiff, who enjoys the advantage of the verdict of the jury and the judgment of the court.
. The hard surface of the highway is 16 feet wide and there are wide shoulders on each side. It is practically level and straight for 1500 feet approaching the point of the accident and departing therefrom. The grandfather of the infant plaintiff had driven to the Edward’s establishment with his grandson in his automobile. He parked his car in front of the store from 8 to 10 feet from the hard surface of the highway and went into the store, leaving the child in the car.
At this time a truck heavily loaded with four or five tons of coal, driven by W. H. Sheckler, Jr., who was hauling coal for his father, was approaching the store from the South. In the cab of the truck were the driver, Stella Kilgore, a young girl 17 years old, and a young man named Arnold .Farmer.- Young Sheckler was bound for a place called Haysi which was some distance away. He had made three trips
It is quite evident to us that the truck was going too fast to be under the complete control of the driver. When
There was ample evidence tending to show that he was not observant of either of these requirements. The jury was well within its province in finding a verdict for the plaintiff. We see no reason to disturb it, indeed, under the circumstances we cannot do so. The plaintiff was severely injured. He remained in a hospital for some two weeks and at the time of the trial his mother testified that he suffered from periods of swimming in the head.
The damages were laid in the notice of motion for judgment at $5000.00. The verdict was most reasonable.
In Trice v. Burton, 155 Va. 229, 154 S. E. 499, this was said:
“It must be borne in mind, that unless the verdict of the jury is plainly wrong, or is without evidence to support it, this court will sustain it.”
In Union Trust Corp. v. Fugate, 172 Va. 82, 92, 200 S. E. 624, is this:
“While the evidence of the plaintiff is not as satisfactory as it might be, we are unable to say that it is incredible or impossible. The verdict is not contrary to the evidence, or without evidence to support it. There is nothing in the record to satisfy us that it is a ‘plain deviation from right and justice.’ ”
“The trial judge, who saw and heard the witnesses, took the same view, although he stated that if he had been on the jury he might have favored a different verdict. He recognized, however, that the jury were the sole judges of the weight of the evidence and the credibility of the witnesses, and that since there was credible evidence to support their verdict, it could not be disturbed.”
“Irrespective of the maximum speed herein provided, any person who drives a vehicle upon a highway recklessly or in a manner so as to endanger life, limb, or property of any person shall be guilty of reckless driving.”
and we held:
“While plaintiff himself fixed the rate of speed at exactly the limit of fifty-five miles per hour there can be no doubt that he crossed the crest of the hill at an unwarranted rate of speed, under the facts and circumstances of this case, and that the concurring, if not the proximate cause of the accident was his violation of section 2154 (108) of the Code of Virginia.”
Pertinent to the point made that the plaintiff in error was driving on the wrong side of the road when the child was injured, is the case of Smith v. Turner, 178 Va. 172, 16 S. E. (2d) 370, 136 A. L. R. 1251, in which we said:
“Driving a car on the left side of a highway (except in instances not here material) is in violation of the statute [Michie’s Code of 1936, section 2154 (112)] and constitutes negligence. Whipple v. Booth, 155 Va. 413, 416, 154 S. E. 545; Collins v. Robinson, 160 Va. 520, 523, 169 S. E. 609; Huffman v. Jackson, 175 Va. 564, 568, 9 S. E. (2d) 295, 297.”
If, as in this case, there was a failure to comply with the section referred to, unless the plaintiff was guilty of contributory negligence, the defendant was hable for injuries resulting from the collision. Of course, a child four years of age cannot be guilty of contributory negligence.
There were three assignments of error. The first was based on the alleged error of the court in not sustaining the motion to enter judgment for the defendant non obstante veredicto.
The second was the alleged error of the court in granting two instructions, Nos. 1 and 2.
We think neither of the instructions is subject to valid objection.
No. 1 simply told the jury that if they believed from a preponderance of the evidence that the place of the accident was such as we have heretofore described it to be, as to the physical conditions which obtained, and that the driver saw a small boy suddenly cross the highway, it was his duty to take the necessary precaution to have his car under proper control so as to avoid injury, and if they believed he faded to do so and this proximately caused the injury, then they should find for the plaintiff, etc.
No. 2 properly brought before the jury the effect of driving on the left side or in the middle of the road, conditioned upon such act being the proximate cause of the injury.
What we have already said disposes of these assignments.
We are of the opinion that the objections to the form of the verdict are without merit.
The jury fixed the damages at a certain and definite amount. They believed that all of the defendants were liable and they said so.
The action of the court in deleting the verdict of two of the defendants, which was manifestly right, did not impair it as to the remaining and responsible defendant.
We said in Williams v. Commonwealth, 153 Va. 987, 994, 151 S. E. 151:
“This court will also go far in the disregard of defects in verdicts which have been accepted by the trial courts, but from which, notwithstanding such defects, the real finding of the jury may be determined, though it may not be accurately couched in the technical language of the law. It is always necessary, however, before a judgment can be entered upon a verdict, that it appear just what the jury found or intended to find”.
The trial court was plainly right in its rulings and its judgment is
Affirmed.
Hxjdgins, J., dissenting.