Bloxom v. McCoy
| Decision Date | 24 November 1941 |
| Docket Number | Record No. 2407. |
| Citation | 178 Va. 343 |
| Court | Virginia Supreme Court |
| Parties | WALTER E. BLOXOM v. CHARLES GOODE McCOY. |
1. AUTOMOBILES — Appeal and Error — Ruling Not Cross-Assigned as Error Not Reviewed — Case at Bar. — In the instant case, an action for damages for injuries received by plaintiff while riding as a passenger in an automobile driven by defendant, defendant at the trial insisted that the guest doctrine applied, and offered a number of instructions which would have submitted such doctrine to the jury. The trial court refused the instructions, but to that ruling there was no cross-assignment of error.
Held: That the Supreme Court of Appeals in its review of the case was confined to the rule of ordinary care or ordinary negligence, rather than to that of slight care or gross negligence.
2. AUTOMOBILES — Appeal and Error — Ruling Not Cross-Assigned as Error Not Reviewed — Case at Bar. — In the instant case, an action for damages for injuries received by a passenger in an automobile, defendant offered and instruction on contributory negligence which was refused by the trial court, but no exception was taken to such refusal and no cross-error was assigned.
Held: That the Supreme Court of Appeals could not consider the question.
3. AUTOMOBILES — Arguments and Conduct of Counsel — Objection to Argument after Retirement of Jury — Case at Bar. — In the instant case, an action for damages for injuries received by plaintiff while riding in a car driven by defendant, plaintiff contended that the jury was influenced in their finding by the improper argument of defendant's counsel, who stated that "any verdict they might render against defendant would have to be paid out of his own pocket and out of his own hard earned wages." There was no objection to the argument at the time it was made but later, when the jury had retired, plaintiff's counsel made an objection. He did not ask for a mistrial nor did he ask the court to instruct the jury to disregard the argument and the trial court ruled that the objection came too late.
Held: No error.
4. AUTOMOBILES — Appeal and Error — Failure to Except of Lower Court's Ruling — Case at Bar. — In the instant case, an action for damages for injuries received by plaintiff while riding in a car driven by defendant, plaintiff contended that the jury was influenced in their finding by the improper argument of defendant's counsel who stated that "any verdict they might render against defendant would have to be paid out of his own pocket and out of his own hard earned wages." There was no objection made to the argument at the time and the record failed to show any exception to the ruling of the court that an objection made after the jury had retired came too late.
Held: That failure to except to the rule of the court precluded the Supreme Court of Appeals from considering the point.
5. AUTOMOBILES — Arguments and Conduct of Counsel — Informing Jury That Defendant Did Not Carry Insurance — Case at Bar. — In the instant case, an action for damages for injuries received by plaintiff while riding in a car driven by defendant, plaintiff contended that the jury was influenced in their finding by the argument of defendant's counsel who stated that "any verdict they might render against defendant would have to be paid out of his own pocket and out of his own hard earned wages."
Held: That the argument was improper since it was obviously made for the purpose of informing the jury that the defendant did not carry liability insurance.
6. AUTOMOBILES — Doctrine of Error in Extremis — Instruction Is Proper if Warranted by Evidence. — In automobile accident cases, where the evidence warrants it, an instruction on the sudden emergency doctrine is entirely proper.
7. AUTOMOBILES — Doctrine of Error in Extremis — Evidence Not Justifying Instruction — Case at Bar. — In the instant case, an action by plaintiff for damages for injuries received while riding in an automobile driven by defendant, plaintiff objected to an instruction embodying the sudden emergency doctrine. The evidence showed that the defendant undertook to wipe the inside of the windshield with his handkerchief while driving along a wet road at from thirty to thirty-five miles per hour. Defendant had wiped the windshield several times prior to the time of the accident.
Held: That the evidence did not justify the court in granting an instruction on the sudden emergency doctrine since the action of the defendant in wiping the windshield immediately before the accident was deliberate and most likely caused the car to go off of the concrete.
8. AUTOMOBILES — Doctrine of Error in Extremis — Driver Must Be Free from Fault. — Automobile accidents generally occur suddenly, but suddenness alone is not sufficient to bring into play the emergency doctrine. For it to apply, the driver must be influenced by a sudden emergency not brought about by his own tortious conduct. If he has an opportunity to exercise his deliberate judgment between alternate courses to pursue, no emergency arises in legal contemplation. On the other hand, if he is suddenly confronted by the unexpected operation of some natural force, or by the innocent or wrongful act of a third person, the emergency doctrine arises.
9. AUTOMOBILES — Doctrine of Error in Extremis — Driver's Negligence Question for Jury — Case at Bar. — In the instant case, an action by plaintiff for damages for injuries received while riding in an automobile driven by defendant, plaintiff objected to an instruction embodying the sudden emergency doctrine. The evidence showed that the defendant undertook to wipe the inside of the windshield with his handkerchief while driving along a wet road at from thirty to thirty-five miles per hour. Defendant had wiped the windshield several times prior to the time of the accident.
Held: That whether the defendant was or was not negligent in using his right hand to wipe the clouded windshield just prior to the accident, and at the same time continuing to drive on the wet road, using only his left hand, at 30 to 35 miles per hour, under all the attendant circumstances, was a question for the jury under proper instructions.
Error to a judgment of the Circuit Court of Norfolk county. Hon. A. B. Carney, judge presiding.
The opinion states the case.
Carlton E. Holladay, I. W. Jacobs and Harry H. Kanter, for the plaintiff in error.
A. E. S. Stephens and Tom E. Gilman, for the defendant in error.
Walter E. Bloxom instituted an action against Charles Goode McCoy for damages for personal injuries arising from an automobile accident. Bloxom was a back seat passenger in an automobile which was being driven by McCoy and which ran off the road, causing the aforesaid injuries. A jury trial was had, and a verdict and judgment in favor of the defendant McCoy resulted.
The accident occurred on June 23, 1939, at approximately 4:30 in the afternoon. McCoy was driving an...
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