Greear v. Noland Co.
| Decision Date | 14 September 1955 |
| Docket Number | No. 4388,4388 |
| Citation | 89 S.E.2d 49,197 Va. 233 |
| Parties | LYNN E. GREEAR v. NOLAND COMPANY, INCORPORATED. Record |
| Court | Virginia Supreme Court |
Fred B. Greear and Chester Stafford, for the plaintiff in error.
Dillow & Andrews, for the defendant in error.
This action was instituted by Lynn E. Greear, plaintiff, against Noland Company, Incorporated, defendant, to recover damages for personal injuries received when he was struck by a truck driven by Wesley Abraham Woolwine, agent of defendant. A jury trial resulted in a verdict for the defendant on which the trial court entered final judgment. This writ of error brings that judgment here for review. Plaintiff assigns error to the action of the trial court in granting certain instructions and in admitting certain evidence.
There is no substantial conflict in the evidence. It shows that on January 23, 1953, about 1:30 p.m., the plaintiff, who was a supervisor for the Department of Highways, was driving his automobile along Route 100 between Narrows and Pearisburg in Giles county when he overtook a station wagon in which three men under his supervision were riding. Both vehicles were traveling east. After passing the station wagon and signaling its driver to stop, plaintiff drove his car onto the right shoulder of the road and stopped. The driver of the station wagon also stopped on the right shoulder, 30 to 50 feet behind plaintiff and about 30 inches off the hard surface. Plaintiff got out of his car and walked back along the shoulder to the station wagon where he stopped at the front door next to the driver and inquired as to the health of one of his men. During this conversation, and after about 30 to 40 seconds, he was struck and severely injured by a dual wheel truck, owned by defendant and operated by defendant's agent, traveling in an easterly direction.
The bed of defendant's truck was eight feet wide and extended 12 inches on each side beyond the width of its front portion or cab. The corner of this extended bed struck plaintiff along his right side between his hip and shoulder. At the point of impact the road was straight, a little over 21 feet wide and visibility from that point west to where the highway went over a knoll and out of sight was estimated at from 300 yards to a quarter of a mile. The road was dry and the weather clear.
Woolwine, the driver of defendant's truck, testified that when he came over the knoll about a quarter of a mile west of the station wagon he saw a man 'standing between the station wagon and the hard surface. ' He did not know whether this man was 'getting out or getting in, or what, but I just kept my certain speed right on. ' He also testified that from the time he first observed the plaintiff, he saw him 'up until my front end of the truck passed him,' and that he at no time prior to the accident saw the plaintiff on the hard surface of the road. He further testified that no other vehicles were traveling along the highway at the place of the collision; that he did not sound his horn, and that he was driving on the hard surface of his right hand lane.
The plaintiff testified that at the time of the accident he was standing 'a foot or more' off the hard surface with his right forearm resting on the door of the station wagon. When questioned as to whether he saw the truck prior to the accident, plaintiff testified:
Upon requests of counsel for the parties the trial court granted 11 instructions for the plaintiff and 7 for the defendant. In this case, where the controlling facts are not complicated and the issues clear, we find that many of the instructions are repetitious and could only have confused and misled the jury rather than guided them in their deliberations. It is doubtful whether a jury could fully understand and apply them intelligently. See Green v. Ruffin, 141 Va. 628, 125 S.E. 742; Washington, Etc., Ry. v. Thompson, 136 Va. 597, 118 S.E. 76.
Plaintiff assigns error to the granting of Instruction O, which reads as follows: 'The Court instructs the jury that if you believe from the evidence that Woolwine drove the Noland truck on his right and proper side of the highway and that immediately prior to the accident the Plaintiff, Greear, saw the truck approaching, or by the exercise of ordinary care should have seen said truck approaching, and that thereafter Greear placed himself so close to the hard-surfaced portion of the highway, and unwittingly, carelessly and in disregard of the dictates of self-preservation, knowing of the approach of said truck, remained in a dangerous position, and if you further believe from the evidence that Greear's position either proximately caused, or contributed to cause his own injury, then he is not entitled to recover and the doctrine of last clear chance does not apply in this case. ' (Italics supplied).
The evidence is undisputed that plaintiff did not and could not have seen the truck prior to placing himself between the station wagon and the hard surface of the road. The defendant's truck driver testified that plaintiff was standing beside the station wagon when it first came into his view as he came over a knoll at least 300 yards away, and that he did not change his position prior to the accident. Although plaintiff testified that he was bound to have seen the truck if it were in view as he walked along the shoulder, he did not remember whether he saw it at any time prior to the collision. The three occupants of the station wagon testified that they did not see or hear the truck and no witness testified that plaintiff at any time changed his position between the station wagon and the hard surface prior to the accident. Hence there is no evidence on which the jury should find that after plaintiff saw or could have seen the truck he placed himself next to the highway and 'knowing of the approach of said truck remained in a dangerous position. ' Furthermore, the instruction is misleading and improperly assumes that plaintiff was in a 'dangerous position.'
Error is also assigned to the granting of Instructions M and N. Both of these instructions, as well as C-1 and E, in effect told the jury that if they believed from the evidence that plaintiff placed himself in a dangerous position where he might be struck by a passing vehicle using the highway, then it was...
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...and realized, or ought to have realized, his peril in time to avert the accident by using reasonable care. Greear v. Noland Co., 197 Va. 233, 89 S.E.2d 49, 53 (1955). Accord, Brock v. United States, 596 F.2d 93, 95 (4th Cir.1979). This case does not fit within that description of the doctri......
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...and realized, or ought to have realized, his peril in time to avert the accident by using reasonable care. Greear v. Noland Co., Inc., 197 Va. 233, 238-39, 89 S.E.2d 49, 53 (1955). The first scenario describes the "helpless" plaintiff and the second, the "inattentive" plaintiff. A plaintiff......
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