Harris Motor Lines Inc v. Green

• Decision Date: 04 March 1946
• Citation: 184 Va. 984,37 S.E.2d 4
• Parties: HARRIS MOTOR LINES, Inc. v. GREEN.
• Court: Virginia Supreme Court

37 S.E.2d 4

184 Va. 984

HARRIS MOTOR LINES, Inc.

v.GREEN.

Supreme Court of Appeals of Virginia.

March 4, 1946.

Rehearing Denied April 24, 1946.

Error from Law and Equity Court of Richmond; Haskins Hobson, Judge.

Action by George R. Green against Harris Motor Lines, Inc., to recover for damages to a truck in collision with defendant's truck, wherein defendant filed a cross-claim for damages to its truck. Verdict and judgment for plaintiff, defendant's cross-claim dismissed, and defendant brings error.

Judgment reversed and action and cross-claim both dismissed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and SPRATLEY, J J.

A. Scott Anderson and Aubrey R. Bowles, Jr., both of Richmond, for plaintiff in error.

John G. May, Jr. and M. Wallace Mon-cure, Jr., both of Richmond, for defendant in error.

GREGORY, Justice.

George R. Green, the owner of a truck which was being operated by his servant, Charles Combs, brought an action at law against Harris Motor Lines, Inc., the owner of a truck which was being operated by its servant, E. M. Mask, for damages to the truck resulting from a collision of the two trucks. Both trucks were damaged and Harris Motor Lines, Inc., filed a cross-claim for damages to its truck. Green prevailed and a verdict and judgment in his favor were obtained. The cross-claim of Harris Motor Lines, Inc., was dismissed and it prosecutes this writ of error.

The facts are without substantial conflict or dispute. The collision occurred on November 3, 1943, on U. S. Highway No. 1, at about 4 o'clock a.m. The scene of the collision is near the city limits of the city of Richmond and almost opposite Emmanuel Church.

The highway at this point is divided into two lanes of travel by a strip of ground containing a long row of cedar trees, a grass plot and the like. On the west side of this strip of land is the southbound roadway, and on the east side is the northbound roadway.

Green, the owner of one of the trucks, had it equipped with a stake body, and at the time it was transporting a load of apples, which were in baskets, from Winchester, Virginia, to Norfolk, Virginia. We will hereafter refer to this truck as the Green truck.

The Green truck was brought to a stop at the scene of the accident at around 11 o'clock p.m. by reason of a mechanical failure. The right rear dual wheel was partly off on the shoulder of the highway. All the rest of the truck remained on the hard surface. The night was dark and it was raining. The load of apples on the truck was covered with a tarpaulin. The top of the stake body was more than seven feet from the ground, and it was not equipped with dimension or marker lights as is required by Virginia Code, sec. 2154(141) (g).

The truck was not equipped with a supply of flares which are directed to be used in the event of an emergency, as provided by Virginia Code, sec. 2154(133a). The driver, however, testified that he had some small red flags, three of which he stuck in a seam of the concrete about 75 feet to the rear of the truck, and two of which he attached to the left side of the body of the truck. After having done this the driver and a colored soldier who had been riding with him got back in the cab of the truck and there sat for some five hours without doing anything further until approximately 4 o'clock a.m., when the collision occurred.

The driver made no attempt to have the truck removed from the highway in compliance with Virginia Code, sec. 2154(133a). Just three blocks away was Kelley's service station, which was open day and night, and which operated a wrecker to remove vehicles from the highway. Notwithstanding the proximity of this service station the driver did not go there and apply for aid during the five hours that the truck remained parked in a dangerous position on the highway. After the accident Kelley's wrecker did remove the truck from the highway.

The driver of the truck of the Harris Motor Lines, Inc., was proceeding in a southerly direction on the same highway at about 4 o'clock a.m. This truck was traveling about 25 or 30 miles per hour and it collided with the Green truck. It was raining at the time. No one was injured by the collision.

The driver of the truck of the Harris Motor Lines, Inc., testified that his lights would disclose an object as big as a man for a distance of 150 feet ahead, and that he could have stopped within 150 feet. He stated that he was looking but that he did not see the Green truck until he was 20 or 25 feet away from it, which was too late to avert the collision.

The issue which we think determinative is whether the court erred in submitting to the jury the doctrine of the last clear chance. We are of opinion that the court did err in this respect. The evidence discloses a clear case of concurring negligence and under it neither party should have recovered.

This seems to have been the view of the trial court for under instruction No. 5 the court told the jury that as a matter of law the drivers of both trucks were guilty of negligence which efficiently contributed to cause the accident.

In speaking of the negligence of the driver of the Green truck the trial court had this to say:

"Other than placing the flags above mentioned, he and his companion did nothing whatever, but climbed into the cab of the truck and remained there until the time of the accident, four or five hours later. There were two small rear lights on the truck, but at the angle at which the truck was situated on the highway these lights must have shown at least partly to the side and not straight to the rear along the highway. The failure to do a single efficient thing to get the truck off of the highway as required by law, or to protect his own property, and more particularly to protect the lives and property of oncoming traffic, under all the circumstances of this case, in the view of the court, constitutes not only the lack of ordinary care, but was negligence so gross, --and in that it shows such utter disregard of the safety of the lives of many other people, --as almost amounting to wantonness. It was a trap for the unwary maintained through the continuing negligence of the plaintiff for a period of at least four hours. Yet he is being permitted to recover damages against one falling into the trap through his negligence in not being on the alert for a space of three or four seconds.

"The following statement of Mr. Justice Spratley in the case of Twyman v. Adkins, 168 Va. 456, at page 468 (interchanging the words 'plaintiff and 'defendant') would be apt and controlling here but for...