Barnes v. Ashworth

• Decision Date: 12 June 1930
• Citation: 154 Va. 218
• Court: Virginia Supreme Court
• Parties: BROADUS B. BARNES AND SAMUEL BALLENTINE v. R. E. ASHWORTH, ADM'R OF MARTIN L. HAGWOOD, DECEASED.

Page 218

154 Va. 218

BROADUS B. BARNES AND SAMUEL BALLENTINE v. R. E. ASHWORTH, ADM'R OF MARTIN L. HAGWOOD, DECEASED.

Supreme Court of Virginia, Wytheville.

June 12, 1930.

Absent, Hudgins, Gregory and Browning, JJ.

1. MASTER AND SERVANT — Agency — Action Against Both Master and Servant or Principal and Agent for Negligence of Agent — Verdict in Favor of Servant or Agent Acquits Master or Principal. — Where a master and his servant are sued together for the same act of negligence and the master's liability, if any, rests solely upon the servant's misfeasance or malfeasance, a verdict which in terms finds for the servant and against the master, or is silent as to the servant and finds against the master, is either predicated upon a misapprehension of the law, or is so capricious and arbitrary or, at least, so contradictory and doubtful, that no judgment predicated upon the verdict should be entered for or against the plaintiff as to either the master or the servant, but upon the motion of either the plaintiff or the defendant master the court should set aside the whole verdict, the expressed or implied finding for the servant as well as the finding against the master.

2. NEW TRIALS — Action Against Master and Servant or Principal and Agent for Negligence of Agent — Verdict Against Master or Principal — New Trial or Final Judgment for Both Defendants. — When an action against a master and his servant for negligence rests solely upon the servant's negligence, a verdict against the master which is silent as to the servant or acquits the servant, as a general rule, should be set aside. A new trial against both defendants should be awarded both upon the question of the amount of damages and the liability of the defendants. But in such a case when a demurrer to the evidence would have been sustainable as to the liability of the party who is alleged to have committed the act of negligence complained of, the court should enter final judgment for both defendants.

3. NEW TRIALS — Action Against Master and Servant or Principal and Agent for Negligence — Verdict Against Master or Principal — New Trial or Final Judgment for Both Defendants. — When an action against a master and his servant for negligence rests solely upon the servant's negligence, a verdict against the master which is silent as to the servant or acquits the servant, as a general rule, should be set aside. If a demurrer to the evidence would have been sustainable as to the liability of the master or principal upon the grounds that there is no evidence of the existence of the relationship of master and servant, or principal and agent, the court should enter final judgment for the alleged defendant master or principal.

4. NEW TRIALS — Action Against Master and Servant or Principal and Agent for Negligence — Verdict Against Master or Principal — New Trial or Final Judgment for both Defendants. — Where a verdict in an action against master and servant is against the master but is silent as to the servant, or acquits the servant, and the negligence in question rests upon the action of the servant, there is a sound discretion vested in the trial court as to when the ends of justice will be the better served by granting a new trial upon all questions involved or by applying the exceptions to the general rule; and unless it be a very plain case the action of the trial court in granting a new trial against both defendants upon all questions involved should not be disturbed, and this is especially true where the instructions given by the court may have been confusing to the jury.

5. NEW TRIALS — Action Against Master and Servant or Principal and Agent for Negligence — Verdict Against Master or Principal — New Trial or Final Judgment for Both Defendants — Case at Bar. — The instant case was an action for the death of plaintiff's intestate who was struck by a car driven by one of the defendants and owned by the other. Plaintiff sought to fix the liability upon the owner of the automobile upon the theory that the driver was operating the car as the agent or servant of the owner. The jury found a verdict against the owner of the car but the verdict was silent as to the driver.

Held: That the trial court, in applying the general rule and ordering a new trial, did not err either in refusing to enter judgment for the defendants or in refusing to limit the new trial to the question of the liability of the defendants.

6. AUTOMOBILES — Contributory Negligence of Plaintiff — Parking on Wrong Side of Road — Case at Bar. — The instant case was an action for the death of plaintiff's intestate who was struck by a car driven by one of the defendants and owned by the other. Plaintiff's intestate had collided with another car just before the fatal accident and had parked his car on the wrong side of the road in contravention of the statute (Acts 1928, page 1922; section 2145(26) 1928 Supp. Code of Virginis) opposite the car with which he had collided which was parked on the right side of the road, and was engaged in a controversy with the driver of this car when he was struck and killed by defendant's car. All of the witnesses agreed that there was nothing to have prevented plaintiff's intestate from parking his car on the right side of the road, and plaintiff's intestate had been warned by one of the witnesses that his car was on the wrong side of the road. In attempting to avoid the car of plaintiff's intestate defendants' car struck plaintiff's intestate and killed him and struck the other car on which there was no light. The car of defendants was running at the time of the collision at from eighteen to twenty-five miles an hour. Plaintiff tried to show that there was some physical defect in the starter on defendants' car but the evidence was not sufficient to support this theory.

Held: That plaintiff's intestate was guilty of contributory negligence.

7. NEGLIGENCE — Instructions — Last Clear Chance — Evidence to Furnish Basis for an Instruction — Test. — The test to be applied in determining whether there is sufficient evidence to furnish the basis for an instruction is, would a verdict in accordance with the instruction be set aside for lack of evidence to support it. If not, then the instruction may be properly given.

8. NEGLIGENCE — Last Clear Chance — Negligence on Part of Both Parties. — The doctrine or rule of the last clear chance presupposes that there has been negligence on the part of both the plaintiff and the defendant. Unless there is evidence that plaintiff was guilty of contributory negligence the doctrine has no application.

9. NEGLIGENCE — Last Clear Chance — Negligence of Plaintiff Continuing to Time of Injury and is a Factor Contributing Thereto — Actual Knowledge — Duty of Lookout — Application of the Doctrine. — In many jurisdictions the rule of the last clear chance is held to have no application unless the defendant had actual knowledge of the peril of the plaintiff. However, in Virginia, and in some other States, the doctrine of the last clear chance has been extended much further and the rule is applied (1) to that class of cases in which the peril of the plaintiff was actually known to the defendant or ought to have been known to him from facts and circumstances brought home to his knowledge, and (2) to that class of cases in which the defendant owes to the plaintiff a duty to keep a reasonably careful lookout, commensurate with the nature of the agency he is using or operating and the nature of the locality, and by the exercise of ordinary care ought to have seen or known of the plaintiff's perilous situation in time to have avoided the injury by the exercise of ordinary care.

10. NEGLIGENCE — Last Clear Chance — Negligence of Plaintiff Continuing to Time of Injury and is a Factor Contributing Thereto — Actual Knowledge — Application of the Doctrine. — In the first class of cases (those in which the defendant saw or had actual knowledge of the peril of the plaintiff) when the negligence of the plaintiff continues up to the time of the injury, the rule of the last clear chance is only applicable when and after the defendant is aware, or ought to be aware from facts and circumstances brought home to his knowledge, that the plaintiff is unconscious of his peril and will take no steps to secure his own safety, or is in a situation from which the exercise of ordinary care on his part will not thereafter extricate him.

11. NEGLIGENCE — Last Clear Chance — Negligence of Plaintiff Continuing to Time of Injury and is a Factor Contributing Thereto — Actual Knowledge — Application of the Doctrine. — In the second class of cases (those in which the defendant does not see or have actual knowledge of the peril of the plaintiff, but owes to him the duty of lookout), the defendant as a matter of law is charged with the actual knowledge of what he must have seen and known had he performed his duty and kept such a lookout as he is required by law to keep. Hence, in the second class of cases the rule of the last clear chance has no application where the negligence of the person injured continued up to the time of the injury unless and until it is established that had the defendant kept such a lookout, as he was required by law to keep, he would or ought to have been aware from facts and circumstances which would have been brought home to his knowledge, that the plaintiff was unconscious of his peril and would take no steps to secure his own safety, or was in a situation from which the exercise of ordinary care on his part would not thereafter extricate him.

12. NEGLIGENCE — Last Clear Chance — Negligence of Plaintiff Continuing to Time of Injury and is a Factor Contributing Thereto — Actual Knowledge — Application of the Doctrine. — When the defendant is aware, or ought to be aware from facts and circumstances brought home to his knowledge, that the plaintiff is unconscious of his peril, or is in a situation of peril from which he cannot by the...