Armstrong v. Rose

• Decision Date: 28 April 1938
• Citation: Armstrong v. Rose, 170 Va. 190, 196 S.E. 613 (1938)
• Parties: W. D. ARMSTRONG AND L. H. WIGGINS v. ELLA MAE ROSE, ADM'X, ETC.
• Court: Virginia Supreme Court

Page 190

170 Va. 190

W. D. ARMSTRONG AND L. H. WIGGINS v.ELLA MAE ROSE, ADM'X, ETC.

Supreme Court of Virginia, Richmond.

April 28, 1938.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1.AUTOMOBILES — Collision with Parked Truck — Negligence — Leaving Truck on Highway after Dark without Lights or Warning Signals — Case at Bar.— The instant case was an action to recover for the wrongful death of plaintiff's intestate, driver of an empty Ford convoy, who was instantly killed when he crashed into defendants' disabled log truck, which had been left on a much-traveled highway, after dark, without lights or warning signals.Although the driver of the log truck might have telephoned from a nearby town for assistance, or have had a passing motorist send assistance to him, he abandoned the truck without any one to guard it and proceeded to a town much farther away.

Held: That the evidence amply and fully established actionable negligence on the part of defendants.

2.AUTOMOBILES — Collision with Parked Truck — Contributory Negligence — Right to Presume Highway Would Be Unobstructed — Case at Bar.— The instant case was an action to recover for the wrongful death of plaintiff's intestate, driver of an empty Ford convoy, who was instantly killed when he crashed into defendants' log truck, which had been left on a much-traveled highway, after dark, without lights or warning signals.Defendants contended that if the truck of plaintiff's intestate had been equipped with proper lights he should have seen the parked truck in time to have avoided it, if he had been keeping a proper lookout.

Held: That since plaintiff's intestate was traveling in his proper traffic lane, he had a right to presume that no obstructions or unlighted objects would be parked upon the highway in front of him.

3.AUTOMOBILES — Collision with Parked Truck — Contributory Negligence — Evidence Failing to Show Unlawful Speed — Case at Bar.— The instant case was an action to recover for the wrongful death of plaintiff's intestate, driver of an empty Ford convoy, who was instantly killed when he crashed into defendants' log truck, which had been left on a much-traveled highway, after dark, without lights or warning signals.Defendants contended that the physical facts indicated that plaintiff's intestate was driving at an unlawful rate of speed, but the driver of another car testified that he passed plaintiff's intestate at about twenty-four feet from the point of the collision, and that at that time the witness was traveling between forty-five and fifty miles an hour.

Held: That there was no merit in defendants' contention, since the speed of the truck driven by plaintiff's intestate was necessarily less than that of the witness' automobile when the witness overtook him and passed him, and could not have been increased much in the short distance involved.

4.AUTOMOBILES — Collision with Parked Truck — Questions of Law and Fact — Contributory Negligence — Case at Bar.— The instant case was an action to recover for the wrongful death of plaintiff's intestate, driver of an empty Ford convoy, who was instantly killed when he crashed into defendants' log truck, which had been left on a much-traveled highway, after dark, without lights or warning signals.Defendants contended that plaintiff's intestate was driving without proper lights, that his speed was unlawful and that he should have turned to the right or left to avoid the parked truck.Just prior to the collision a car passed plaintiff's intestate from the rear, and at the time of the collision he was meeting an automobile and truck whose lights were shining in his direction.

Held: That under the circumstances the question of ordinary and reasonable care on the part of plaintiff's intestate was a question for the jury.

5.NEGLIGENCE — When a Question for the Jury.— Where the evidence and the direct inferences therefrom are such that reasonable and fair-minded men may differ in their conclusions, the question of negligence is a question of fact and is left to determination by the jury.

6.AUTOMOBILES — Collision with Parked Truck — Instructions — Amendment of Instruction Originally in Language of Section 2154(133) of the Code of 1936 — Case at Bar.— In the instant case, an action to recover for the death of plaintiff's intestate in a collision with a truck parked on the highway after dark, without lights or warning signals, the court instructed the jury that "no vehicle shall be left upon the highway in such manner as to impede, or interfere with, or render dangerous, the use of the highway by others; and if you believe from the evidence that the motor vehicle of the defendant was allowed to remain upon the highway in such unreasonable manner as to impede or interfere with, or render dangerous, the use of the highway by the plaintiff decedent, the defendant was guilty of negligence."As originally offered by plaintiff this instruction was in the language of section 2154(133) of the Code of 1936, and used the word "stopped" instead of the word "left."The court also added to the original instruction the word "unreasonable" before the word "manner."Defendants contended that the amendment was not only a departure from the language of the statute, but was without evidence to warrant it.

Held: That there was no merit in the contention.If to stop a vehicle upon the highway in such a manner as to interfere with the use thereof by others is contrary to statute, certainly to stop and leave a truck upon the highway and to allow it to remain there in an unreasonable manner put plaintiff to proof of a higher degree of negligence.

7.AUTOMOBILES — Stopping on Highway — Section 2154(133) of the Code of 1936 — Application to One Who Is Stopped by Accident.— While section 2154(133) of the Code of 1936 may not have intended to penalize one who is stopped by accident, its language is sufficiently broad to include within its provisions one who, stopped by an accident, allows his vehicle to remain stopped in a manner unreasonably interfering with traffic and rendering dangerous the use of the highway.

8.AUTOMOBILES — Collision with Parked Truck — Instructions — Cure of Objection by Other Instruction Given — Case at Bar.— In the instant case, an action to recover for the death of plaintiff's intestate in a collision with a disabled truck which was left on the highway, after dark, without lights or warning signals, the court instructed the jury that "no vehicle shall be left upon the highway in such manner as to impede, or interfere with, or render dangerous, the use of the highway by others; and if you believe from the evidence that the motor vehicle of the defendant was allowed to remain upon the highway in such unreasonable manner as to impede or interfere with, or render dangerous, the use of the highway by the plaintiff decedent, the defendant was guilty of negligence."At defendants' request the court also instructed the jury that if the jury believed that the truck driver "did what a reasonably prudent man would have done to protect his truck and remove it from the highway, then he was not guilty of negligence."

Held: That any objection to the first instruction was removed by the instruction given at the instance of defendants.

9.AUTOMOBILES — Collision with Parked Truck — Instructions — Making Reasonableness of Truck Driver's Conduct Dependent on His Acts in Protecting Truck — Case at Bar.— In the instant case, an action to recover for the death of plaintiff's intestate in a collision with a disabled truck which was left on the highway, after dark, without lights or warning signals, the court, at defendants' request, instructed the jury that if they believed that the truck driver "did what a reasonably prudent man would have done to protect his truck and remove it from the highway, then he was not guilty of negligence."

Held: That this instruction was open to the objection that it made the reasonableness of the conduct of the defendant truck driver dependent upon his acts in protecting his truck and property instead of making the test apply with reference to his acts and conduct towards protecting the traveling public.

10.NEGLIGENCE — Contributory Negligence — Presumptions and Burden of Proof.— Negligence and contributory negligence are never presumed but must always be proven.

11.AUTOMOBILES — Collision with Parked Truck — Presumptions and Burden of Proof — That Decedent Exercised Ordinary Care — Case at Bar.— The instant case was an action to recover for the wrongful death of plaintiff's intestate, driver of an empty Ford convoy, who was instantly killed when he crashed into defendants' log truck, which had been left on a much-traveled highway, after dark, without lights or warning signals.There were no eyewitnesses to the accident.

Held: That, in the absence of any evidence to the contrary, it was presumed that decedent did his duty as he approached the parked truck just prior to the collision, and that he exercised ordinary care under the circumstances and did only what an ordinarily prudent man would have done under such circumstances.

12.DEATH BY WRONGFUL ACT — Presumptions and Burden of Proof — That Deceased Exercised Due Care.— In an action for wrongful death, there is a presumption that the deceased acted from the instinct of self-preservation and exercised due and proper care for the protection of his person and the preservation of his life, which prevails where the plaintiff is incapable of testifying, and there are no eyewitnesses.It is a presumption of law, and only obtains in the absence of evidence, but the burden is upon the defendants to overcome the presumption by evidence.

13.AUTOMOBILES — Collision with Parked Truck — Instructions — Failure to Except or State Ground of Objection to Instruction in Trial Court — Case at Bar.— In the instant case, an action to recover for the death of plaintiff's intestate in a collision with a...