Boward v. Leftwich
| Decision Date | 14 September 1955 |
| Docket Number | No. 4365,4365 |
| Citation | 89 S.E.2d 32,197 Va. 227 |
| Parties | J. C. BOWARD, TRADING AS J. C. BOWARD TRUCK LINE v. JOHN LYNCH LEFTWICH, PERSONAL REPRESENTATIVE OF GEORGE LEFTWICH, DECEASED. Record |
| Court | Virginia Supreme Court |
Moncure & Cabell and C. M. Elder, for the plaintiff in error.
E. S. Solomon, Hale Collins and John T. Delaney, for the defendant in error.
The issue in this case is whether the evidence is sufficient to support the verdict against appellant, based on a charge of willful or wanton negligence on the part of the driver of his truck in causing the death of George Leftwich, appellee's decedent.
The action was brought against Boward, trading as J. C. Boward Truck line, and Cecil R. Mitchell. Mitchell, Boward's employee, was driving Boward's tractor-trailer truck loaded at Covington with oil in drums for delivery in Pittsburgh. The truck weighed 18,000 pounds and its cargo 23,750 pounds. Mitchell had had twelve to fifteen years' experience as a truck driver but had not previously driven this truck, which the evidence showed was in good condition. Mitchell had been specifically instructed by his employer not to pick up passengers. He had been working for Boward one or two months.
The trip from Covington to Pittsburgh was being made over Highway 220 via Hot Springs and Monterey. The accident happened about four-thirty in the afternoon of April 9, 1951, not far north of Hot Springs. Mitchell took the wrong road at Hot Springs but had turned around and was back at Route 220 when he came upon Leftwich at the side of the road. He stopped and asked Leftwich if that was the right road to Monterey, No. 220, that he wanted to follow No. 220. Leftwich replied, 'Yes, this is the right road; if you're going to Monterey, I'll ride over and show you the way. ' Mitchell answered that he was not allowed to haul any passengers, but added, 'Just for the accommodation, come on, I'll haul you over there. ' Leftwich got in, they drove up the road a short distance and pulled over into a side lane. While there one Bradley came along and Mitchell asked him the way to Monterey. Bradley told him and at Mitchell's invitation also got into the truck and rode up the road but got out before the accident occurred. He testified that there was nothing about Mitchell's driving or his condition to make him afraid.
There was no surviving eye-witness to the accident other than Mitchell, who testified that he was driving at 35 to 40 miles an hour; that he wasn't used to the truck and was having a little trouble about shifting gears. '* * * the truck just bogged down and turned over on its side. ' Leftwich, who was then riding with his head out the window, was killed.
Mitchell was driving north. There was a curve in the road about 75 yards south of the accident. A short distance before reaching the curve the truck passed a man who testified that he heard the motor racing and as the truck passed, the driver was 'trying to hit the gears, and he couldn't get it in gear;' that there were two men in the truck, one lying with his head over the door and the driver 'was looking down at the floor, trying to get it in gear,' but had not got it in gear when he went around the turn. He further testified that the driver seemed to be driving all right, 'was on the right side of the road, but he just couldn't get the truck in gear.'
When the truck was in the lane where Bradley was picked up a State trooper came by and asked Mitchell if he was having any trouble or was lost. Mitchell replied that he had been lost but was straightened out now and was all right. This trooper came to the scene of the accident about an hour after it happened. He testified that he found the tracks of the truck where it left the road and went off the shoulder into the ditch and turned over; that the tracks measured 123 feet, 9 inches; that the road was level and straight from the point where the truck left the hard surface to where it turned over; that from the edge of the hard surface to the ditch the shoulder of the road was seven feet wide, consisting of five feet of firm sod on which the truck wheels had gone down only an inch or two; that the remaining two feet to the ditch were muddy and marshy and it had been raining. Mitchell told him he was having trouble with the gears of the truck; that he couldn't get it in gear and lost control of it.
Mitchell, the driver, was arrested, indicted for involuntary manslaughter, entered a plea of guilty and was sentenced to twelve months in jail, six of which were suspended. He did not appear at the trial of the instant case but his previously taken deposition was read in evidence.
The jury returned a verdict against both Mitchell and Boward, his employer, on which judgment was entered. There was no appeal by Mitchell and we have no jurisdiction with respect to the judgment against him. Boward has appealed and made seven assignments of error, the one controlling the disposition of the case being that the verdict was contrary to the law and the evidence and without evidence to support it.
At the instance of the plaintiff the court instructed the jury that both defendants owed Leftwich the duty not to...
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