Allen v. Brooks

• Decision Date: 05 March 1962
• Docket Number: No. 5370,5370
• Citation: Allen v. Brooks, 203 Va. 357, 124 S.E.2d 18 (1962)
• Parties: FRANK RICHARD ALLEN, ET AL. v. SAMUEL A. BROOKS. Record
• Court: Virginia Supreme Court

Page 18

124 S.E.2d 18

203 Va. 357

FRANK RICHARD ALLEN, ET AL. v.SAMUEL A. BROOKS.

Record No. 5370.

Supreme Court of Appeals of Virginia

March 5, 1962.

A. Christian Compton(John G. May, Jr.; J. Barrye Wall, Jr.; May, Garrett, Miller, Newman & Compton, on brief), for the plaintiffs in error.

Richard L. Williams(Henry H. McVey, III; William F. Watkins, Jr.; Battle, Neal, Harris, Minor & Williams, on brief), for the defendant in error.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

Samuel A. Brooks, hereinafter referred to as the plaintiff, brought an action to recover damages for injuries to his person and property alleged to have been sustained when the automobile he was driving was in a collision with a truck owned by the defendants, G. M. Davis and Clarence O. Thomas, and which had been parked on the highway by the defendant, Frank Richard Allen.A jury trial resulted in a verdict of $5,720.00 in favor of the plaintiff against all three defendants.

The trial court overruled the defendants' motion to set the verdict aside and entered final judgment on the verdict.We granted the defendants a writ of error which presents the following questions for our determination:

(1) Were the defendants guilty of negligence which proximately caused the accident?

(2) Was the plaintiff guilty of contributory negligence as a matter of law?

(3) Did the court err in granting, at the request of the plaintiff, instruction number 1?

(4) Did the court err in permitting the jury, in instruction number 4, to consider the question of permanent injury to the plaintiff?

(5) Was the closing argument of plaintiff's counsel improper?

(6) Was the verdict excessive?

The accident occurred on January 27, 1960, on Third Street in the town of Farmville.Third Street runs east and west and the accident occurred in the block between North Street and Randolph Street.Third Street is straight and level and is 40 feet wide.Parking is permitted on the south side of the street, but prohibited on the north side, thus leaving three lanes for moving traffic.Vehicles were parked in the lane on the south side of the street at the time of the accident.

There was serious dispute among the witnesses concerning the time of the occurrence of the accident.The plaintiff testified that it happened at 6:10 p.m.Other witnesses placed the time from 5:50 p.m. to 6:05 p.m.It was raining at the time, was misty or foggy, and visibility was poor.The sun set on the day of the accident at 5:26 p.m.

The defendant Allen, accompanied by the defendant Thomas, was operating the large tractor-trailer truck, loaded with wood pallets, through Farmville en route to Dillwyn.As the vehicle approached the ultimate scene of the accident, its engine failed and Allen parked the truck on the north side of Third Street, next to the curb, in the no-parking zone, directly under a street light.There were three other street lights in the block where the accident occurred.All the street lights were lighted.

Allen and Thomas attempted to start the truck, but were unsuccessful.They then left the vehicle, unattended and without lights, to go to a nearby garage to telephone the defendant Davis at Dillwyn for assistance.In their absence the accidence occurred.They heard the noise of the impact, returned to the scene, and Thomas turned on the lights of the truck, because the 'didn't want someone else piling into it.'

The testimony varied as to the length of time the truck was parked prior to the accident.Thomas stated that it had been parked for 10 to 15 minutes; a police officer who testified said that it had been parked for 45 minutes.

Mudflaps were installed behind the rear wheels on each side of the trailer, on each of which were two red reflectors, 8 to 10 inches from the highway surface; there was a red reflector on each side of the bed of the trailer, 4 feet above the level of the highway.Thomas stated that these reflectors were covered with the usual amount of dirt that would be accumulated from a wet road.

On the evening in question the plaintiff, as had been his daily custom for 9 years, left his home in Farmville to go downtown to purchase a newspaper.He testified that in all of his previous trips along the block in question he had never seen any vehicles parked in the no-parking zone.

On his return trip he proceeded westerly along Third Street at a speed of 15 to 18 miles per hour.After passing North Street he met four vehicles proceeding in an easterly direction; three of these vehicles had their headlights dimmed, but the fourth one displayed its high beams.

The plaintiff testified that he was blinded by the headlights of the other vehicles, and especially by those of the last vehicle in line, and that when he switched his own lights to high beam, after passing by the fourth car, he saw the defendants' truck in front of him, in his lane, only 8 to 10 feet away.He immediately applied his brakes, but was unable to stop, and collided with the rear of the truck.

That it was extremely difficult to observe the truck under the circumstances existing on the night in question was corroborated by a witness called by the plaintiff.This witness testified that he was riding in an automobile proceeding westerly on Third Street just prior to the accident; that the lights of two approaching vehicles blinded him; that he was within 30 feet of the parked truck before he saw it although he was looking directly forward, and that the driver of his vehicle had to swerve to the left to avoid a collision.

The first two questions, i.e., those relating to the defendant's negligence and to the plaintiff's contributory negligence, will be discussed together.

The plaintiff is before this Court clothed with a verdict of an impartial jury in his favor.That verdict has been approved by the trial judge who, together with the jury, saw the witnesses and heard them testify.

Since the plaintiff is the successful litigant, the evidence must be viewed in the light most favorable to him.All conflicts in the evidence have, by the jury's verdict, been resolved in the plaintiff's favor.It is incumbent upon us to uphold this verdict unless it is plainly wrong or without credible evidence to support it.Virginia Beach v. Roman, 201 Va. 879, 881, 882, 114 S.E.2d 749;Danner v. Cunningham, 194 Va. 142, 147, 72 S.E.2d 354.

In this Commonwealth, we follow the salutary rule that questions of negligence and contributory negligence should, if at all appropriate, be left to the determination of the jury.This is because such questions, ordinarily, can only be determined by the sifting and appraisal of facts -- matters which are exclusively within the province of the jury.Steels v. Crocker, 191 Va. 873, 880, 62 S.E.2d 850;Va. Elec. & Power Co. v. Wright, 170 Va. 442, 446, 196 S.E. 580.

The trial court is empowered to step in and decide such questions, as matters of law, in a proper situation, thereby withdrawing from the jury any consideration thereof.But this course should be followed by the court only when reasonable men should not differ as to the conclusion to be reached from the facts and where one, and only one, conclusion, as a matter of law, is warranted.Nehi Bottling Co. v. Lambert, 196 Va. 949, 955, 86 S.E.2d 156;Penoso v. D. Pender Grocery Co., 177 Va. 245, 248, 249, 13 S.E.2d 310.

Mindful of these principles, we reach the conclusion that, in the case before us, the alleged negligence of the respective parties presented a purely factual situation which was properly left to the jury for its decision.

Whether the defendants were negligent in leaving their truck, unlighted and unattended for as long as 45 minutes in a no-parking zone, in a lane reserved for moving traffic on a rainy, foggy evening, and whether, if such was negligence, it was the proximate cause of the accident, could only properly be determined by the jury.This question has been determined by the jury adversely to the defendants, upon credible evidence, and that finding ought not to be disturbed.

Similarly, it was for the jury to say whether the plaintiff was negligent in failing to see the truck in time to avoid colliding with it.The plaintiff testified that he was driving at a moderate speed; that his windshield wipers were in operation and that his lights were dimmed, as the law required them to be, until after he had passed the line of approaching vehicles; that he was maintaining a proper lookout, and that he did not sooner see the truck because it was unlighted and because he was blinded by the lights of the oncoming vehicles.

The plaintiff's version of the accident is not incredible.Reasonable men might well differ as to whether the plaintiff took all the precautions for his safety required of him by the law.The jury's finding that he did act with reasonable care is not plainly wrong, even though the members of this Court, if sitting on the jury, might have reached a different result.

The defendants rely on the case of Harris v. Howerton, 169 Va. 647, 194 S.E. 692, as requiring a determination in this case that the plaintiff was guilty of contributory negligence as a matter of law.A recital of the lengthy factual situation in the Harris case would unnecessarily prolong this opinion.

The Harris case is, upon its facts, in marked contrast to the case before us in the following respects: In that case, the weather was clear on the night of the accident; Howerton's unlighted truck, with which Harris collided, was parked on a street where Harris knew that vehicles were ordinarily parked without lights; Harris presented no evidence to show that the truck was in a no-parking zone; Harris met only one vehicle just prior to striking the truck, and gave conflicting testimony as to whether he was blinded by the lights thereof.This being true, we think the Harris case is clearly distinguishable from the case at bar and is not controlling here.

The defendants next contend that...