Ball v. Witten

• Decision Date: 12 September 1930
• Citation: 154 S.E. 547
• Parties: BALL. v. WITTEN.
• Court: Virginia Supreme Court

154 S.E. 547

BALL.

v.WITTEN.

Supreme Court of Appeals of Virginia.

Sept. 12, 1930.

Defendant's testimony showed that he saw five children from 350 to 400 feet ahead on highway, hard surface of which was 12 or 13 feet wide, with dirt shoulder on each side which increased width of road by 3 feet. Defendant sounded horn, whereupon three children moved over to dirt shoulder on one side, and deceased and another, who were the youngest, moved to the other side and continued to walk, single file, with their backs toward automobile, which was 10 or 15 feet away, when deceased started diagonally across road and ran into fender above front wheel.

[Ed. Note. —For other definitions of "Reasonable Care, " see Words and Phrases.]

Instruction involved was not applicable to facts, because danger must have become reasonably apparent when defendant first saw group of children about 350 or 400 feet in front of him.

Instruction involved stated that defendant, in driving his automobile, was merely to use ordinary care at all times, having regard to width, traffic, and use of highways, and protection of life and property. But acts constituting exercise of ordinary care in cases involving adults might constitute gross negligence where children are concerned.

Error to Circuit Court, Tazewell County.

Action by notice of motion for judgment, brought by George F. Ball, administrator of the estate of Paul Terrell Ball, deceased, against C. B. Witten. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

William H. Werth, of Tazewell, for plaintiff in error.

R. O. Crockett, of Tazewell, for defendant in error.

GREGORY, J.

This litigation was commenced by notice of motion for judgment, brought by George F. Ball, administrator of his deceased son, Paul Terrell Ball, against C. B. Witten, and arises out of an automobile collision which resulted in the death of Paul Terrell Ball, who was, at the time, an infant 5 years old. The trial in the lower court resulted in a verdict in favor of the defendant, Witten.

On May 5, 1929, according to the testimony of the defendant he was driving his 1929 model Ford sedan, which was being used for hire, on a highway in Baptist Valley, a section in Tazewell county. At this time he had in his automobile five passengers; two, with himself, were occupying the front seat and three occupying the rear seat. There was no other traffic on the highway. It had rained earlier in the day, but, at the time the child was injured, the highway was "practically dry." There is a slight descent in the highway from the crest of a small hill to the point where the child was struck by the automobile, estimated to descend 13 feet to 400 feet in distance. The hard surface of the highway is 12 or 13 feet wide and there are dirt shoulders on either side, and from one extreme edge of the dirt shoulder to the extreme edge of the other is 15 or 16 feet. Beyond the dirt shoulders are small ditches which were muddy at the time. When the defendant reached the top of the small hill, he observed five children in the road, some 350 or 400 feet ahead of him. At this point he was traveling 20 to 25 miles per hour. He sounded his horn, applied his brakes, and promptly reduced his speed to 15 or 18 miles per hour. When he sounded the horn, the children moved out of the road, three of them, the older ones, moved to the dirt shoulder on the right, and the remaining two children, one of whom was the child who was killed went to the dirt shoulder on the left. They continued to walk, single file, with their backs to the on-coming automobile, on the dirt shoulders on the sides of the road. The distance between the children on the right and those on the left was 13 to 15 feet, and through this space the defendant undertook to negotiate a passage between them, at a speed, according to his testimony, of from 15 to 18 miles per hour, with his foot removed from the brake. When he had proceeded to a point about 10 or 15 feet from them, the deceased child ran diagonally across the road, with his back to the on-coming automobile, and collided with it at a point on the left front fender directly over the center of the left front wheel. The child received a fata injury from this impact, and died a very short time afterwards.

The defendant further testified that when he saw the child start across the road he applied his brakes and his automobile "picked up speed, " and when the child collided with the automobile, he turned to the right, but that he could not turn freely either to the right or left without striking one or more of the other children. If the automobile was traveling in the center of the road, it would have been, when it reached a point opposite the children, between 3 and 4 feet from them, on either side, and, if it was traveling on the right side, at that point it would have been about 6 feet from those on the left and 1 to 2 feet from those on the right.

Skid marks were observed, immediately after the injury to the child, beginning near the center of the road, continuing slightly to the right for 25 feet to the right ditch, and extending for 36 feet in the ditch to the point where the automobile was brought to a stop.

The facts narrated appear from the defendant's evidence. The testimony will be considered in a light favorable to him, because we are confronted with the verdict of the jury in his favor, which is controlling on the conflicts in the testimony.

During the trial the defendant was permitted to testify, notwithstanding the objection of the plaintiff, that it was "not possible" for him to have avoided the injury to the child. Whether, by the exercise of ordinary care, it was possible to have avoided the child, was the principal issue before the jury. It was an issue exclusively for the jury to decide under all of the facts and circumstances. The jury, considering the conditions and surroundings and the defendant's testimony, as to what he did, were the sole judges as to whether it was possible for him to have avoided the child. Witnesses should not be permitted to give their opinions or conclusions as to what is or is not possible. That should be left to the jury.

Several instructions were offered by the plaintiff and refused; others modified and giv-en. Several were given by the court on the motion of the defendant. Four of them were not applicable to the facts.

Instruction No. 2 was as follows:

"The court instructs the jury that if they believe from the evidence that the defendant was driving his automobile in a lawful manner and without negligence and that the inJury to the deceased child could not have been avoided by any act on the part of the defendant after the danger of the deceased became reasonably apparent, then the jury must find for the defendant."

Instruction No. 3 was as follows:

"The court instructs the jury that an automobile driver, who by the negligence of another, and not by his own negligence, is suddenly confronted by an emergency and is compelled to act instantly to avoid an accident or an...