Beasley v. Barnes
| Decision Date | 07 March 1960 |
| Docket Number | No. 5054,5054 |
| Court | Virginia Supreme Court |
| Parties | WILLIAM GENE BEASLEY, AN INFANT, ETC. v. SAMUEL BARNES, ET AL. Record |
Robert E. Gibson and Major M. Hillard, Jr., for the plaintiff in error.
E. L. Ryan, Jr. and Eugene Forrest Gordman (I. W. Jacobs; White, Ryan & Reynolds, on brief), for the defendants in error.
The sole question involved in this appeal is whether plaintiff, William Gene Beasley, an infant who was 19 years of age, was guilty of contributory negligence as a matter of law when the motorcycle he owned and operated collided with a truck owned by defendant Bottoms Fiske Truck Lines, Incorporated, and operated by defendant Samuel Barnes, its employee, in South Norfolk on January 22, 1957.
A trial was had on May 6 and 7, 1958, and the jury awarded plaintiff a verdict in the sum of $27,500 for damages resulting from severe personal injuries he sustained. On motion of defendants, the trial court by its order of February 26, 1959, set the verdict aside as being contrary to the law and the evidence and rendered judgment for defendants. We granted plaintiff a writ of error.
The accident happened about 4:15 p.m. on Campostella road at the entrance to the Bottoms Fiske property where the company has a sizeable white office and warehouse building about 50 feet back from dual swinging entrance gates which are 15 or 16 feet wide. Campostella road is of black top construction, about 18 to 20 feet wide and consists of two lanes. It runs north and south. Bottoms Fiske's dirt driveway is on the east side of Campostella road and relatively opposite it on the west side is Laurel street which comes to a dead end there. Laurel street is also of dirt construction and is not quite as wide as the entrance gates to Bottoms Fiske. North of this point Campostella road is straight for approximately 400 yards and south of it the road is straight for about 1.5 blocks. In the vicinity of the accident the north and southbound lanes of Campostella road are divided by a single broken white line and the highway is practically level. The weather was clear and driving lights were not needed. According to plaintiff the road was neither wet nor dry. He said it had rained previously. Other witnesses described the road as dry.
Plaintiff was driving his motorcycle, which was in good condition, south on Campostella road. Riding tandem on the seat with him was Miss Becky White, age 17, whom he was taking to her place of employment. Plaintiff was familiar with the road and the surroundings as he had driven on it many times before. There was no oncoming traffic at the time and the speed limit for the section of the road involved was 25 miles per hour. Considerable traffic was flowing south on Campostella road. Plaintiff passed several vehicles, including a tractor-trailer truck which was immediately behind the Bottoms Fiske 1953 Ford truck, and collided with the Bottoms Fiske truck as it was making a left turn into the entranceway of Bottoms Fiske's warehouse. The operator of the tractor-trailer truck, estimated the speed of the Bottoms Fiske truck when making the turn was 5 to 10 miles per hour. The police officers, who arrived at the scene about 2 or 3 minutes after the accident, said that the impact occurred on the hard-surfaced portion of the road in the northbound lane at a point approximately 3 feet from the east side thereof. The motorcycle left skid marks about 87 feet long. The impact caused both Beasley and Miss White to be thrown from the motorcycle. Miss White was not injured. There was practically no damage done to the truck, and the motorcycle was not heavily damaged.
Beasley testified that he was traveling about 20 miles per hour; that he blew his horn before he attempted to pass the Bottoms Fiske truck; that Barnes gave no signal of his intention to make the turn; that he was approximately 125 feet from the truck or 'something like that', when he first noticed it was going to make the turn; that he applied the brakes to both wheels and 'tried to lay the motorcycle down', which means turning it towards the ditch. He further testified that the truck 'made a sharp turn'; that it 'blurted right out' of the line of traffic and that he struck it in the side.
Miss White testified that Beasley was traveling about 20 miles per hour; that he sounded his horn before attempting to pass the Bottoms Fiske truck; and that it cut across in front of them 'sort of catercornered without a signal.'
Barnes said: Later, on cross-examination, he testified that he 'was practically on the gate' the last time he looked in the mirror and he did not see the motorcycle; that he had reduced his speed to 5 or 10 miles per hour, and that he did not know whether the motorcycle horn blew because his truck made so much noise. He stated the motorcycle collided with the truck 'right behind the back wheel, near the tail gate.'
Other witnesses testified for the litigants. The conflict in the evidence as to whether plaintiff was exceeding the speed limit; as to the position of the truck at the time of the collision; as to what part of the truck was struck by the motorcycle; as to whether the blinker signal lights were burning on the truck before and at the time of making the turn, and other questions of fact were issues the jury resolved in favor of plaintiff.
In support of their contention that plaintiff was guilty of contributory negligence as a matter of law, defendants assert that plaintiff's own testimony convicts him of such negligence. It is argued that plaintiff testified he was traveling 20 miles per hour; that when he first saw the truck begin its turn across the highway to the left, he was approximately 125 feet away, and that the uncontradicted evidence was that after he applied his brakes the motorcycle left skid marks of approximately 87 feet. Defendants say that the physical facts warrant the inference of excessive speed and that plaintiffs estimate of speed is incredible and should be rejected. They point to § 46-212.2 , CODE 19501, as amended, which relates to stopping distances of motor vehicles under certain conditions, to show that plaintiff was operating his motorcycle at an excessive rate of...
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Ferguson v. Cox, 71-1772.
...to considering only errors specifically assigned in a writ of error. See Rule 5:1, § 4 (1957 Replacement Volume); Beasley v. Barnes, 201 Va. 593, 113 S.E.2d 62 (1960). Thus, even though the record on appeal clearly disclosed all of the defects Ferguson alleged in respect to the conviction, ......
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Womack v. Eldridge
...her of any liability. We will not consider those contentions because defendant did not assign cross-error. Beasley v. Barnes, 201 Va. 593, 598, 113 S.E.2d 62, 65 (1960); Blue Ridge Poultry and Egg Co., Inc. v. Clark, 211 Va. 139, 141, 176 S.E.2d 323, 325 (1970); Rule 5:7, Rules of For the r......