Body v. Matter

• Decision Date: 09 January 1939
• Citation: Body v. Matter, 172 Va. 26, 200 S.E. 589 (1939)
• Parties: BODY, FENDER & BRAKE CORPORATION. v. MATTER.
• Court: Virginia Supreme Court

200 S.E. 589

BODY, FENDER & BRAKE CORPORATION.

v.MATTER.

Supreme Court of Appeals of Virginia.

Jan. 9, 1939.

Error to Law and Chancery Court of City of Norfolk; O. L. Shackelford, Judge.

Action at law by R. C. Matter against the Body, Fender & Brake Corporation for damages resulting from an automobile collision.To review a judgment for plaintiff, upon the court's refusing to set aside the verdict and enter judgment for defendant, defendant assigns error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

Williams, Loyall & Taylor, of Norfolk, for plaintiff in error.

Rixey & Rixey, of Norfolk, for defendant in error.

CAMPBELL, Chief Justice.

This action at law was brought by R. C. Matter, plaintiff, against the defendant corporation to recover damages for injuries sustained by plaintiff by means of a collision between an automobile driven by him and a truck owned and operated by the defendant.There was a trial by a jury which resulted in a verdict and judgment for the plaintiff in the sum of $1,000.The accident occurred June 25, 1937, at night on a concrete road in Princess Anne county on what is known as the Shore Drive.The road is approximately eighteen feet wide and at the point of the accident passes through pine woods on both sides of the road and runs northeast towards Ocean View and southwest towards Virginia Beach.A large truck belonging to Sears-Roebuck and Company had stalled in the sand off the road on the bay side of the drive, with the rear of the truck ten to fifteen feet from the edge of the road.In response to a service call, defendant's wrecking truck came to the scene of the accident for the purpose of towing the Sears-Roebuck truck out of the sand.The defendant's wrecking truck was painted a greenish gray.Its body measured three feet high from the running board, and mounted in the body was the wrecking crane.At the moment of impact defendant's truck was standing on the concrete at an angle of approximately forty-five to sixty degrees with the edge of the road and pointing in the general direction of Virginia Beach.The front of defendant's truck was in the center of the road, with its rear practically on the edge of the road opposite the Sears-Roebuck truck.The lights upon defendant's truck cast a gleam diagonally across the road and were not observable by plaintiff who was traveling northeast towards Ocean View.

Plaintiff, in substance, testified that when he approached the place where the truckswere standing there were several cars coming, and in order not to blind the drivers of the approaching cars, and in order to better observe the edge of the road, he turned the beam of his head-lights down; that some of the approaching cars had the head-lights dimmed and some did not; that he was not blinded to the extent of being unable to see signal lights if any had been shown; that no flares had been placed by the operator of the truck to warn of danger; that the only warning signal given by defendant was the spraying of a flashlight by a boy seventeen years of age who was standing in the center of the road close to the front bumper of the truck; that due to the lights of the approaching cars, it was impossible to observe the light from the flashlight; that he was driving at a rate of speed which did not exceed forty miles an hour; that after passing the last approaching car he observed defendant's truck twenty-five feet in front of him standing diagonally across the road; that he immediately applied the brakes, and veered to the right in order to avoid striking the truck; that as he turned toward the right he saw the Sears-Roebuck truck; that he attempted to turn back to the left and struck both of the trucks.

The only assignment of error is that the court erred in refusing to set aside the verdict and enter judgment for the defendant.The contention of defendant is (1) that defendant was not guilty of actionable negligence, and (2) that plaintiff was guilty of contributory negligence.

The basis for the first contention is that the defendant in the operation of its wrecking car at night for the purpose of removing wrecked or disabled cars or trucks "took all the precautions which were reasonably necessary in the light of the admitted conditions existing."

The rule in regard to the operation of a wrecking truck upon the highway while being used for the removal of a wrecked automobile is correctly stated in 2 Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Ed, § 1200, as follows:

"Since it is necessary for the public to have the aid of a wrecker in rescuing disabled or wrecked motor vehicles, persons obstructing a highway with a wrecker for the purpose of such rescue work are not obliged to exercise the highest de gree of care, but only reasonable care, to avoid injury to travelers."

In the instant casedefendant...