Atl. Greyhound Corp. v. Shelton

• Decision Date: 14 January 1946
• Citation: 36 S.E.2d 625,184 Va. 684
• Parties: ATLANTIC GREYHOUND CORPORATION. v. SHELTON et al. JACKSON et al. v. SAME.
• Court: Virginia Supreme Court

36 S.E.2d 625

184 Va. 684

ATLANTIC GREYHOUND CORPORATION.

v.SHELTON et al.

JACKSON et al.

v.SAME.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Error to Circuit Court of Lunenburg County; G. E. Mitchell, Jr., Judge.

Action by J. Judson Shelton, administrator of the estate of Joseph Judson Shelton, Jr., deceased, against the Atlantic Greyhound Corporation and others to recover damages for deceased's wrongful death as the result of a collision between named defendant's bus, in which deceased was a passenger, and the blade of a bulldozer being transported on a tractor-trailer truck. Judgment for plaintiff against named defendant and certain other defendants, and named defendant and such other defendants bring error.

Reversed and case dismissed as against named defendant, and judgment otherwise affirmed.

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

No. 2968:George E. Allen and M. Wallace Moncure, both of Richmond, for plaintiff in error.

A. G. Robertson, Norman L. Flippen, and Aubrey R. Bowles, Jr., all of Richmond, for defendants in error.

No. 2968-A: Aubrey R. Bowles, Jr., of Richmond, and W. Moncure Gravatt, of Blackstone, for plaintiffs in error.

George E. Allen, M. Wallace Moncure, A. G. Robertson, and Norman L. Flippen, all of Richmond, for defendants in error.

HUDGINS, Justice.

J. Judson Shelton, administrator of the estate of J. Judson Shelton, Jr., instituted this action, to recover damages for the wrongful death of plaintiff's decedent, against the Atlantic Greyhound Corporation; E. W. Grannis, V. B. Higgins, McDevitt and Street Company, a corporation, and F. N. Thompson, a partnership and joint venture operated under the name of Grannis, Higgins, Thompson and McDevitt Company; Robert Jackson; Highway Equipment and Construction Company and McDevitt and Street Company. The jury returned a verdict for the defendants, Atlantic Greyhound Corporation, Highway Equipment and Construction Company, and McDevitt and Street Company, and for plaintiff against the other named defendants. The trial court set aside the verdict returned for the Atlantic Greyhound Corporation and entered judgment in the sum of $15,000 for plaintiff against it and all defendants except the Highway Equipment and Construction Company and the McDevitt and Street Company. To this judgment, the Atlantic Greyhound Corporation and the other defendants, except the Highway Equipment and Construction Company and the McDevitt and Street Company, prosecute two separate writs of error. There are two petitions and many briefs for the respective parties, but only one record.

On November 8, 1943, J. Judson Shelton, Jr., was one of fifteen passengers on a Greyhound bus running between Norfolk, via Kenbridge and Blackstone, to Roanoke. The bus collided with the blade of a bulldozer that was being transported from Camp Pickett on a tractor-trailer truck. J. Judson Shelton, Jr., and several other passengers were killed. Others suffered severe injuries.

The admitted or well established facts were that the collision occurred on a dark, rainy evening about 6:30 on Route 40 approximately four miles north of Kenbridge on or near a small culvert. The bus, operated by Victor Blue, was traveling north and the trailer truck operated by Robert Jackson, was traveling south. The hard surface of the roadway was originally 18 feet wide, but resurfacing from time to time had extended the width to between 18½ and 20 feet both north and south of the point of impact. The highway was 22 feet wide between the walls (6 inches high)of the culvert. The bus was 33 feet long, 8 feet wide and weighed 9 tons. The tractor was 15 feet long joined by a gooseneck to the trailer 28½ feet in length. The entire length of this combination vehicle was 43½ feet. The width of the trailer was 8 feet with its bed 18 to 20 inches above the surface of the highway. The machine being transported by the tractor-trailer was a caterpillar tractor equipped with a bulldozer weighing 18½ tons. The tractor-trailer truck and the bulldozer equipment weighed 62, 000 pounds or 31 tons. The blade of the bulldozer was 12 feet 3 inches long and about 36 inches wide. It extended 25 inches over the left side of the body of the trailer. The entire width of the load on the truck was 147 inches.

The bus was proceeding at the rate of 30 miles per hour down a long grade, which was straight for approximately 1, 000 feet and terminated at the culvert. The trailer truck was traveling down a slight grade at the rate of 10 to 15 miles an hour as it approached the culvert. The center of the highway was marked with an intermittent white line which clearly indicated the north and south traffic lanes.

The collision occurred on or just north of the culvert. Part of the excess width of the load extended over the right side of the trailer of the truck, and a part, at least 25 inches, extended over the left side so that, if the right wheels of the trailer truck remained on the hard surface of the highway, the blade of the bulldozer extended to or across the center of a highway 18% to 20 feet wide. The blade of the bulldozer cut a gash in the left side of the bus 21 inches deep. This gash extended the length of the bus. The collision caused the death of plaintiff's decedent and the deaths of, and injuries to, others. The driver of the bus was injured by the impact and lost control of the vehicle, which finally came to rest on the west side of the road entirely off the hard surface against a tree 8 inches in diameter 150 feet north of the culvert. The tractor-trailer stopped approximately 40 feet south of the culvert on the west side of the road with its left dual wheels partly over the center of the highway. This was the position of the vehicles involved in the collision when the driver of a second bus arrived on the scene a few minutes after the collision. The driver of the second bus, in order to avoid a collision with the blade of the bulldozer, was compelled to make a quick turn to the east and to drive off the hard surface on the east side of the road just south of the culvert.

All defendants concede that plaintiff is entitled to recover, but each group contends that the negligence of the other was the sole proximate cause of the collision and the catastrophic result. The width of the trailer truck and its load exceeded the width allowed by statute by 51 inches and extended beyond the fender and body on the left side of the truck. Michie's Code 1942, sec. 2154 (158) (a) and (e). The combined weight of the trailer truck and its load exceeded the weight allowed by statute (without a special permit) by 27, 000 pounds. Michie's Code 1942, sec. 2154(160). Robert Jackson, in driving this truck on a dark, rainy night with its illegal weight and illegal width, with the blade of the bulldozer (5 feet 4 inches above the surface of the highway) protruding 25 inches beyond the trailer (8 feet wide) on the side next to the northbound traffic lane, created a situation inherently dangerous to other users of the highway. The trial court correctly instructed the jury that the violation of any one or more of these three statutory provisions was negligence and that, if the jury believed that such negligence was a proximate cause of the death of decedent, plaintiff was entitled to recover. We find no error in these or the other instructions submitting the issues to the jury. The first verdict returned by the jury read: "We, the jury find in favor of the plaintiff and against the said E. W. Grannis, V. B. Higgins, McDevitt and Street Company, a corporation, and F. N. Thompson, a partnership and joint venture operated under the name of Grannis, Higgins, Thompson and McDevitt Company, defendant, and in the sum of $15,000.00."

It will be noted that the jury did not find against either Robert Jackson, the driver of the truck, or the Atlantic Greyhound Corporation. Attorneys for defendants demanded that the verdict be accepted and recorded. After argument and while the jury were still in the box, the trial court made the following statement to them: "Gentlemen of the jury, the Court tells you that it is obvious from this verdict as you have written it that you are in error in understanding the relationship of the parties, that you apparently found against the joint venture but not against Robert Jackson, the man hauling the bulldozer down the road, and the Court is going to ask you to again retire to your room and further consideryour verdict." The jury then retired, but, on the suggestion of counsel, were brought into the courtroom again. The court asked the jury if they understood the connection and relation of Robert Jackson to his employers. One of the jurors stated that they had reached the conclusion that he was an employee and further stated that the jurors had made a mistake. Later the jury returned a verdict in favor of the plaintiff against the parties named and Robert Jackson, assessed the damages at $15,000, and, in addition, the jury stated in the verdict: "We find in favor of the defendants Atlantic Greyhound Corporation, Highway Equipment and Construction Company, and McDevitt and Street Company." The jurors were polled; the verdict was received and recorded. The trial court set aside the verdict in favor of the Atlantic Greyhound Corporation and entered judgment against it and all the defendants except the Highway Equipment and Construction Company and the McDevitt and Street Company. The judgment, dismissing the action against the Highway Equipment and Construction Company and the McDevitt and Street Company, is now final.

It was clear from the first verdict returned by the jury that the jury had misconceived the law as set forth in the instructions applicable to the evidence--that is, that the employers of Robert Jackson were not liable if Robert Jackson was not guilty of negligence. It was the duty of the trial judge to ascertain from the jury its true intention--that is, to...