Cook v. Virginia Holsum Bakeries, Inc.

Citation207 Va. 815,153 S.E.2d 209
CourtSupreme Court of Virginia
Decision Date06 March 1967
PartiesW. S. COOK, Sheriff, etc., Adm'r, etc. v. VIRGINIA HOLSUM BAKERIES, INCORPORATED.

Robert P. Boyle, Charlottesville (James H. Michael, Jr., Boyle & Wood, Michael & Dent, Charlottesville, on brief), for appellant.

Robert E. Taylor, Charlottesville (Taylor, Michie & Callaghan, Charlottesville, on brief), for appellee.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

I'ANSON, Justice.

Virginia Holsum Bakeries, Incorporated, instituted this action against W. S. Cook, Sheriff, etc., administrator of the estate of Marvin C. Lucas, to recover for damages to its tractor-trailer resulting from a collision with an automobile operated by Lucas. After a jury found for the defendant, Cook, the court below set aside their verdict and entered judgment for plaintiff, Holsum, in the sum of $5,982.31, the stipulated amount of damages. We granted defendant a writ of error.

Plaintiff moved to dismiss the writ on the ground that defendant's counsel did not give its counsel a reasonable opportunity to examine the original or a copy of the narrative of the testimony and incidents of trial in accordance with Rule 5:1 § 3(f), Rules of Court.

The record shows that final judgment was entered by the trial court on August 23, 1965. Counsel for defendant notified counsel for plaintiff on October 15, 1965, that a narrative of the evidence and incidents of trial would be tendered to the trial judge at 3 p.m., October 20, 1965. On October 19 counsel for plaintiff requested and was furnished a copy of the proposed narrative. At a conference in the afternoon of the same day, counsel for both parties went over the statement and agreed upon certain corrections and additions.

At the hearing on October 20, counsel for plaintiff said he had not been given a reasonable opportunity to examine the statement and objected to the trial judge's certifying it. He suggested numerous changes, and the trial judge ordered the statement to be amended as suggested by counsel for plaintiff. The revised statement was tendered to the trial judge the next day, October 21, and signed by him on the same day.

What constitutes reasonable opportunity to examine a narrative of the evidence to be tendered to the trial judge must be determined by the facts of each case. See Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S.E.2d 321, 326 (1958).

Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 399 (1959), relied upon by plaintiff in support of its argument to dismiss the writ of error, is clearly distinguishable on its facts from the present case.

We are of opinion that in the instant case counsel for plaintiff was given a reasonable opportunity to examine the narrative, which consisted of only twelve pages by actual count. The narrative was amended to meet the suggested changes of counsel for plaintiff, and he conceded in oral argument before us that the statement signed by the trial judge was correct. Hence plaintiff's motion to dismiss the writ of error for failure to comply with the requirements of Rule 5:1 § 3(f) is overruled.

The narrative statement of the evidence shows that the collision occurred at approximately 11:30 p.m., October 18, 1963, about ten miles north of Charlottesville on route 29, which was a two-lane highway. At the point of the collision the highway was straight and level, with a solid center line governing southbound traffic and a broken line indicating passing was permissible for northbound traffic. It was a clear night, and the road was dry.

Marvin D. Puckett, Jr., plaintiff's employee, testified that he was operating the tractor-trailer in the northbound lane at a speed of 41 miles per hour. He said he first saw the Chevrolet automobile operated by Lucas when it was approximately a quarter of a mile away in the southbound lane. When the Lucas car was 50 feet from him, it suddenly veered into his lane and collided with the left front of his vehicle. He admitted that at an earlier trial in the county court he had stated that the Lucas car was only 15 or 20 feet away when it crossed into the northbound lane.

After the collision the tractor-trailer went across the southbound lane, down an embankment, and came to rest on its right side 6 or 7 feet west of the hard surface. The Lucas vehicle slid south along the southbound lane and across the shoulder, coming to rest on its top on the west side of the road, south of the tractortrailer. Clyde J. Teeder, a passenger in the Lucas automobile, who Puckett first thought was the operator, was thrown out of the car before it caught fire. Puckett was treated for a small cut on the back of his head at the University of Virginia Hospital and was discharged shortly thereafter.

Kenneth Carey and Curtis Smith, plaintiff's shop foreman and sales manager, respectively, arrived at the accident scene at 2 a.m., October 19, 1963, and at that time the Lucas vehicle had been removed. Both men stated that a headlight rim and license plate from the tractor-trailer were lying on the east shoulder of the highway near the scene of the collision.

Carey also testified that the tractor-trailer assembly locked when the collision occurred, causing it to veer to the left. He observed tire marks made by the tractor-trailer beginning 8 to 12 inches east of the center line of the highway and veering westward, as shown by an exhibit in evidence. Smith said that the marks began 6 or 7 inches east of the center line and extended northwesterly at a 45 degree angle to the rear of where the tractor-trailer came to rest.

Dr William Zuk, an expert of structural engineering, visited the scene of the accident a year later and testified without objection. He said that it was his opinion that when the left front portion of the tractor and the left front of the Lucas car collided, the Lucas car was caused to ride up on the left front fender of the tractor-trailer, so that the car was turned over on its right side and then on its top. He added that locking the wheels of the tractor-trailer would cause it to swerve to the left, and the centrifugal force would cause it to fall on its right side as it came to rest.

...

To continue reading

Request your trial
3 cases
  • Sullivan v. Little Hunting Park, Inc
    • United States
    • United States Supreme Court
    • 15 Diciembre 1969
    ...refute any such notion. See Bacigalupo v. Fleming, supra; Bolin v. Laderberg, 207 Va. 795, 153 S.E.2d 251; Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 153 S.E.2d 209.2 But those same decisions do not enable to say that the Virginia court has so consistently applied its notice requi......
  • Whitfield v. Whittaker Memorial Hospital
    • United States
    • Supreme Court of Virginia
    • 5 Septiembre 1969
    ...reach but one conclusion. Giannone v. Johnson, Adm'x, 204 Va. 493, 496, 132 S.E.2d 445, 448 (1963); Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 819, 153 S.E.2d 209, 212 (1967). Here the evidence is conflicting as to whether Mrs. Sayles deviated from the customary and acceptable pro......
  • Shelton v. Jones, Civ. A. No. 1364.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • 27 Junio 1967
    ...illustrating the applicability of the standard to a given set of facts, I have drawn upon Virginia law. Cook, Administrator v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 153 S. E.2d 209 (1967) is relevant. A collision had occurred at night on a two-lane road between plaintiff bakery's tra......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT