Barry v. Tyler

• Decision Date: 21 November 1938
• Citation: 199 S.E. 496
• Parties: BARRY . v. TYLER.
• Court: Virginia Supreme Court

199 S.E. 496

BARRY .

v.TYLER.

Supreme Court of Appeals of Virginia.

Nov. 21, 1938.

[199 S.E. 47]

Appeal from Corporation Court of Alexandria; William P. Woolls, Judge.

Action by Charles E. Tyler, administrator of the estate of Marian Simms, deceased, against Julius G. Barry, for the death of the plaintiff's intestate, who was killed in the collision of an automobile with defendant's truck, which was revived in the name of Daniel J. Barry, administrator, etc, on the death of defendant Julius G. Barry. Judgment for plaintiff, and defendant appeals.

Reversed and judgment entered for defendant.

Argued before CAMPBELL, C. J, and HOLT, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Charles Henry Smith, of Alexandria, for plaintiff in error.

John Barton Phillips and J. Randall Caton, Jr., both of Alexandria, for defendant in error.

SPRATLEY, Justice.

Charles E. Tyler, administrator of the estate of Marian Simms, deceased, instituted this action against Julius G. Barry to recover damages for the death of Marian Simms, caused by a collision of an automobile in which she was a passenger with an automobile truck owned by Julius G. Barry. Barry having died during the pendency of these proceedings, the action was revived in the name of his administrator.

The parties will be hereinafter referred to in the respective positions they occupied in the trial court.

There were two trials of this case in the lower court. In neither trial did the defendant put on any evidence. He relied on motions to strike the plaintiff's evidence. In both cases, the motions were overruled.

At the first trial, there was a verdict for the defendant. Upon a motion to set aside the verdict because the jury had been improperly instructed, the verdict was set aside. At the second trial, a verdict was rendered for the plaintiff in the sum of $3,000, which the trial court affirmed.

The substantial and only question raised in the argument before this court, is whether or not the trial court erred in setting aside the first verdict.

We must, under well established rules of this court, look to the record of the first trial, and if we find that the court erred in setting aside the verdict of that trial, the first verdict will be reinstated, and all proceedings subsequent thereto will be annulled. Harris v. Royer, 165 Va. 461, 182 S.E. 276. (Cases cited.)

The sole assignment of error on the first trial, is to the action of the court in setting aside the verdict of the jury. That verdict was set aside on the ground that instruction number "E", granted at the request of the defendant, was not supported by the evidence.

Instruction number "E" was given in the following language:

"The Court instructs the jury that the law requires all vehicles traveling upon the highway of this State to be equipped with and to have burning at night two driving headlights sufficient to render clearly discernible a person or object at least two hundred feet ahead; and if you believe that the driver of the car in which the plaintiff's decedent was riding was being driven at a time when the vehicle was not equipped with such lights and at a time when said lights were not burning and that such failure was the sole proximate cause of the accident, you must find for the defendant."

A number of other instructions were given, in which respective rights, duties and obligations of the parties were set out. They covered every phase of the case, including the position of the plaintiff's decedent as a guest passenger, and are not in question here.

The statement of the facts in the case must necessarily be gathered from the evidence of the plaintiff. There is little or no dispute as to the facts. In view of the verdict of the jury, we must regard and adopt such of it as is more favorable to the defendant as controlling.

On the night of January 26, 1936, defendant's motor truck, operated by a driver and helper, was being driven northwardly through the city of Alexandria, Virginia, on what is known as the River Road, on U. S. Route No. 1, toward Washington. At about midnight, the truck ran out of gasoline. It was stopped after being driven to the right-hand side of the road, so that the right wheels were about one foot off the concrete on the gravel shoulder. The roadway at this point is thirty feet wide, affording ample space for three lanes of traffic. It is perfectly straight, and practically level for a long distance, in both directions from the point where the truck was parked. After the truck stopped, one of the men employed thereon walked ahead to a gasoline station to get a gasoline supply, the other employee remaining with the truck, and standing nearby. The truck had been standing in this position for a few minutes when a one-seated automobile roadster, Ford model, 1931, approached from the rear and crashed into the left rear end of the truck. The Ford roadster was driven by Charles E. Tyler, and was also occupied by Tyler's wife, by Marian Simms and Eddie McCullough. The wife of Tyler was sitting next to him, McCullough next to her, and Marian Simms on the lap of McCullough. As a result of the crash, Marian Simms and McCullough were killed. The night was dark and cloudy, but it was not raining. The roadway was dry. There was no other traffic at or near the place of the collision at the immediate time of the collision, nor had there been any in either direction for some moments prior thereto.

Tyler and his wife testified that the Ford roadster was being driven between thirty and thirty-five miles per hour, on the right-hand side of the road. They stated that they were looking ahead, but that they did not see any warning...