Angell v. Mcdaniel

• Decision Date: 19 September 1935
• Citation: 181 S.E. 370
• Parties: ANGELL. v. McDANIEL.
• Court: Virginia Supreme Court

181 S.E. 370

ANGELL.

v.McDANIEL.

Supreme Court of Appeals of Virginia.

Sept. 19, 1935.

Error to Hustings Court of Roanoke.

Action by C. H. McDaniel against Arthur S. Angell. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY BROWNING, CHINN, and EGGLESTON, JJ.

H. M. Fox, of Roanoke, for plaintiff in error.

Jesse T. Meadows and Worrell & Worrell, all of Roanoke, for defendant in error.

GREGORY, Justice.

C. H. McDaniel instituted an action for damages against Arthur S. Angell for personal injuries arising out of a collision between an automobile being operated by himself, and another being operated by one Allen, as agent for the defendant Angell. The case was tried by a jury, and a verdict was rendered in favor of the plaintiff, McDaniel, for the sum of $2,500, upon which the court entered judgment.

The sole point raised here is whether or not the plaintiff was guilty of such contributory negligence as would bar his recovery. The defendant, Angell, concedes the original negligence of his driver.

The collision occurred in the city of Roanoke at the intersection of Campbell avenue and Thirteenth street. Thirteenth street, in addition to its automobile traffic, carries a street car line. Campbell avenue is the main thoroughfare going west and is known as the "Lee highway." These two streets intersect at right angles. Campbell avenue runs practically east and west and it is thirty feet wide between curbs, while Thirteenth street runs practically north and south and is thirty or thirty-one feet wide. There is a vacant lot at the southeast corner of the intersection, and on the side of the lot which runs with Thirteenth street there was a hedge. On the front of the lot which fronts on Campbell avenue there was also a hedge. These hedges were some five or six feet high.

Campbell avenue looking to the east is straight. Thirteenth street at this point and approaching it from both directions for a considerable distance is also straight.

The collision occurred on the 12th day of March, 1934, at about 12 o'clock in the middle of the day. The day was clear and the streets were dry. The plaintiff was driving a Reo coupe and proceeding in a northerly direction on Thirteenth street, at fifteen or eighteen miles per hour. The defendant's car, which was a La Salle, was being driven by Allen in a westerly direc-tion along Campbell avenue approaching Thirteenth street, at a speed estimated to be between sixty and seventy miles an hour. The front end of the plaintiff's car had practically cleared the intersection when the defendant's car was driven into the plaintiff's car.

Allen, who was driving the car of the defendant, was not available as a witness at the time of the trial. The defendant concedes that his driver was driving at an excessive speed; that he did not keep a proper lookout and was therefore guilty of negligence. As previously stated, the sole question to be determined here is whether or not the plaintiff was guilty of contributory negligence in entering the intersection under the circumstances then existing.

It is asserted in the petition that the plaintiff was guilty of such negligence as barred his recovery as a matter of law, and therefore the trial court committed reversible error in refusing to set aside the verdict. It is charged that the plaintiff's own evidence convicts him of such negligence. He testified that he was driving north on Thirteenth street at about fifteen to eighteen miles per hour, and as he approached the intersection he recalled that it was a "very dangerous corner as I have seen several wrecks there and I take extra precautions--always do--to see that nothing is coming west." He also said that when "I got where I could see down below the church and didn't see anything of a car at all, so when I entered the intersection, when I got almost across Campbell Avenue I was struck * * *." A map of the physical surroundings was introduced and the plaintiff testified from it. The questions propounded and the plaintiff's answers aided by the map gave the court, jury and counsel an advantage over this court. The testimony given in the light of the map was quite likely more intelligible to them than it is to us. The following question of counsel and answer of the plaintiff illustrates the point:

"Q. Let me interrupt you there a moment: will you show the jury op this map just about what was the position of your automobile at the time the Angell car struck you?

"A. You understand I was going north, I was on the right side of 13th Street, which is correct according to the rules of traffic, I was on that side close to the curb; this man was coming west on Campbell, he was on the right side, which is also correct; when I entered here, there is a hedge here, and at that time of the year there was no leaves on that hedge at all, they hadn't put out; I could see very plainly down Campbell Avenue, I could see down beyond that church and almost to the next street, that nobody was coming at all, but when I entered the intersection I proceeded...