Boyd v. Brown, 3808
| Decision Date | 05 September 1951 |
| Docket Number | No. 3808,3808 |
| Citation | 192 Va. 702,66 S.E.2d 559 |
| Court | Virginia Supreme Court |
| Parties | FRED RONALD BOYD v. ROY BROWN, AN INFANT WHO SUED BY BESSIE BELL BROWN, HIS MOTHER AND NEXT FRIEND. Record |
Meade & Talbott, for the plaintiff in error.
Garrett & Wheatley, for the defendant in error.
This writ of error brings under review the proceedings in a trial that resulted in a judgment on a verdict returned for the plaintiff, an infant, in his action against Fred Ronald Boyd for personal injuries sustained when he was struck by a truck driven by the defendant.
The principles of law involved are not in dispute. There are no assignments of error to the instructions given the jury. The evidence was without substantial conflict. The sole question for our consideration is whether, viewed in the light most favorable to the plaintiff, the evidence is sufficient to support the verdict of the jury.
The accident occurred about 2:15 o'clock p.m., September 16, 1949, at a point on Worsham street between intersections, in the city of Danville, Virginia.
The following rough sketch or diagram will serve to show the locale of the accident and make clearer our references thereto.
Worsham street, paved with concrete, is 40 feet wide and runs north and south. It has sidewalks on each side, and at the place of the accident passes through a residential section. It is used as a by-pass for traffic through the city, and the speed limit thereon is 25 miles per hour. It is intersected by Meade street on the west, 310 feet north of the point of the accident, and by Plum street on the east, approximately 55 feet south of the point of the accident. Immediately south of its intersection with Meade street, there is a cross-walk indicated by white painted lines across Worsham street. Approximately 250 feet north of the cross-walk, the word 'School,' in letters 18 inches wide and 6 1/4 feet high, in an over-all area of 6 1/4 by 9 feet, is painted on the pavement of Worsham street for traffic proceeding south. 375 feet south of the same cross-walk, 'School' is similarly painted south of the intersection with Plum street for traffic proceeding north along Worsham street. There were no cross-walk lines at the intersection with Plum street. No speed signs were posted in the area, and it is not a school zone.
Roy Brown, an infant six years of age and forty-nine inches in height, lives in a section of Danville east of Worsham street. When he was struck he was on his way home from school. The school which he attended is to the west of Worsham street, a quarter of a mile from the scene of the accident. Apparently he had come with two other small boys along Meade street to Worsham street. When they reached the westerly side of Worsham street they did not pass over the cross-walk at the intersection, but proceeded south along the westerly sidewalk of Worsham street towards Grant's store, some 200 or more feet south of the intersection with Meade street.
The defendant, called as an adverse witness, was the first person to testify. He said he was employed by the Danville Pepsi-Cola Company, and had had 14 years experience in truck driving at the time of the accident. He was driving a three-quarter panel delivery truck, and was engaged in making special deliveries. His truck was lightly loaded with three cases of Pepsi-Cola syrup, a tool box, a fountain, and a Pepsi-Cola dispenser. He knew school sessions had started, as he had a daughter attending school, and that small children got out of school early. He said, although he wasn't looking at his speedometer, that he was driving 15 miles an hour, and not over 20 at the most prior to the accident, and was on the lookout for children; that he saw two boys standing on the sidewalk between Grant's store and Plum street, facing each other and talking; that they gave no sign or indication that they intended to cross the street; that as he was already driving his truck carefully he did not reduce his speed; that there were two cars parked at the curb on his right side, the second or foremost being a Buick convertible; that as he was passing the first car, the two boys on the sidewalk were opposite the rear of the Buick; that as he was passing the Buick, the plaintiff, a third boy, ran into the street from in front of the Buick, approximately 6 feet from the front of his truck; that he 'believed' Roy was on the sidewalk near the front of the Buick where he could not see him at the time his truck passed the other two boys; that he was operating his truck on the right-hand side of the street, and that immediately upon seeing the plaintiff he applied his brakes and 'cut' to the left; that his truck stopped within its length, leaving black tire marks for that distance on the pavement; that the center of the grille across the front of his truck struck the boy and 'rolled' him about 6 feet in front of the truck; and that he got out of his truck and went to the aid of the child, lying unconscious in the street. One of Roy's shoes was lying in the street near the right front wheel of the truck at the point where Boyd thought the child was struck.
Boyd further testified that the sudden application of his brakes caused a syrup can and a Pepsi-Cola machine to knock open a door on the right-hand side of the truck and fall into the street. He stopped the truck near the center of the street, its front right wheel being farther away from the right curb than the rear right wheel.
H. B. Hubbard, who was driving a station wagon south along Worsham street, more than 200 feet ahead of the truck of the defendant, said that just before getting to Grant's store, he saw two or three children on the sidewalk 'walking and jumping around and clowning.' Hearing the noise made by the application of the brakes of defendant's truck and by the cans falling from the truck, he looked into his rear view mirror, and saw a child 'bounding along the street.' He immediately stopped his car about 270 feet south of the point of the accident, and went back to that point. He found the child lying 8 or 10 feet ahead of the truck, and one of his shoes near the front side of the truck. The front end of the truck, which had been turned to the left, was also about 12 feet from the left curb. He spoke to Boyd and the latter said, 'The child ran out and ran into the truck.' He called the police, and waited at the scene until the officers arrived.
Upon arrival of two police officers, Boyd made the same explanation of the accident to them. The two officers then made measurements at the scene of the accident, and testified that the front of the right wheel of the truck, as it was brought to a stop, was 17 feet from the right curb of Worsham street, and its rear right wheel was 13 feet from that curb; that the width of the truck was about 6 feet; that its rear left wheel was approximately 1 foot from the center line of the street, and its front left wheel was over the center line and 17 feet from the left curb line; that the rear wheels of the truck were about opposite the front wheels of the Buick; that the truck, with four-wheel brakes, had left tire marks on the pavement for a distance of 20 feet; and that it appeared that the truck had swerved to the left before stopping, and had come to rest straddling the center line of the street. Upon arrival of the officers, there were two cars parked at the westerly curb of Worsham street, approximately 4 feet apart, the front car being a Buick convertible, approximately 18 feet long.
Roy Brown testified but neither of his companions was called as a witness. The following extract from his evidence is the child's explanation of the accident:
' .
'
'A. Joy and I don't know what the other boy's name is.
' .
'
There was a sharp conflict of evidence as to whether the word 'School' was painted on Worsham street, in the manner and at the places mentioned prior to the date of the accident. This conflict the jury apparently resolved in favor of the plaintiff.
Upon the conclusion of the above testimony, presented by the plaintiff, the defendant moved to strike the evidence on the ground that it was insufficient to support a recovery for the plaintiff. The motion was overruled, the jury instructed, and a verdict returned in favor of the plaintiff in the sum of $1,250.
The attorneys for plaintiff must have realized that plaintiff could not recover upon his testimony alone. The testimony of the defendant as to the happening of the accident was uncontradicted. Moreover, it was fully corroborated by the plaintiff's testimony. They called the defendant, the only eye-witness, seeking some additional fact which would sustain the right of plaintiff to a recovery. They were, therefore, bound by such of his statements as were clear, logical,...
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