Bray v. Boston Lumber & Builders' Corp.

• Citation: 172 S.E. 296
• Court: Court of Appeals of Virginia
• Decision Date: 11 January 1934
• Parties: BRAY. v. BOSTON LUMBER & BUILDERS' CORPORATION.

172 S.E. 296

BRAY.

v.BOSTON LUMBER & BUILDERS' CORPORATION.

Supreme Court of Appeals of Virginia.

Jan. 11, 1934.

Error to Circuit Court, Halifax County.

Action by Versie Bray against the Boston Lumber & Builders' Corporation. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

McKinney & Settle, of South Boston, for plaintiff in error.

Martin & Tuck, of South Boston, for defendant in error.

GREGORY, Justice.

This action was brought by Versie Bray, who will be referred to as the plaintiff, against the Boston Lumber & Builders' Corporation, which will be referred to as the defendant, to recover for personal injuries.

At the trial of the case, and at the conclusion of the plaintiff's evidence, the defendant moved to strike out the evidence of the plaintiff on the sole ground that it had been shown by his own evidence that he was guilty of contributory negligence as a matter of law, which barred his recovery. The trial court sustained the motion, struck out the plaintiff's evidence on the ground assigned, and entered judgment for the defendant.

The plaintiff's evidence discloses that he was struck by a piece of green lumber which fell from a passing truck owned and operated by the defendant The truck was proceeding across a bridge over Hyco river, on a state highway leading to South Boston. The plaintiff was, at the time standing on the bridge, talking to two men, and leaning against the cement balustrade. His injuries were of a serious nature.

It appears that the plaintiff, who lived south of the highway about 200 feet west of the bridge, left his home on the morning of March 22, 1932, intending to go to South Boston. He went out on the highway, and proceeded westerly along the south or his left hand side of the highway until he reached the bridge. At that point he walked across to the opposite side of the bridge, a few feet from the end, leaned over against the railing and there was talking to two men, who came upon the bridge from the opposite direction. They had been talking about five minutes when the plaintiff saw the truck belonging to the defendant coming down the highway a.\> proaching the bridge from the east at a rate of speed estimated by some of the witnesses to be between 40 and 50 miles per hour. The grade of the road descends considerably from the east toward the bridge for some distance. The truck was loaded with green lumber. The plaintiff, on the approach of the truck, waved or held up his right hand to the driver in an effort to obtain a ride to South Boston. As the truck reached a point on the bridge near to the point where the plaintiff stood, a board 1x8 inches and 12 feet long fell from the truck, and the end of the board struck him In the face across the upper part of his nose, and knocked him down, rendering him unconscious for ten or fifteen minutes. He suffered broken bones in his nose and other ill effects from the injury.

In the notice and amended notice of motion for judgment filed by the plaintiff, he charges two acts of negligence against the defendant: (1) That the lumber was improperly loaded on the truck; and (2) that the driver of the truck was operating it, at the time, at such a "high, reckless, dangerous, excessive and unlawful rate of speed as to cause or permit a piece of lumber to fall or be thrown therefrom. * * *" It is necessary to analyze the plaintiff's evidence under the familiar rule, which will later be adverted to, and which has been established by prior decisions of this court, regarding a review of the trial court's action in striking the plaintiff's evidence. If under this rule it appears that there was sufficient evidence to have taken the case to the jury on the question of the defendant's primary negligence, then it becomes necessary to determine whether or not the plaintiff was guilty of contributory negligence which barred his recovery.

While it is true the sole reason the court gave for striking the plaintiffs evidence was that the plaintiff was barred by his contributory negligence, yet, if the court's conclusion results in a correct determination of the case, the fact that its action was based upon an erroneous ground would not justify this court in reversing the ruling of the trial court. In other words, if the plaintiff in fact has proven no primary negligence on the part of the defendant, the fact that the court erroneously assigned the reason for its judgment would not necessarily bind and limit the defendant upon this writ of error to the sole question of the plaintiff's contributory negligence. However, by assigning the sole ground, namely, the plaintiffs contributory negligence as the basis of the motion and not assigning the insufficiency of the plaintiffs evidence as a ground, it was calculated to mislead him and cause him the loss of certain legal rights in procedure to which he was entitled. For instance, if the defendant had assigned as one of the grounds of his motion the insufficiency of the evidence, the plaintiff could have taken a nonsuit

Quite recently this court, in Jones v. Hanbury, 158 Va. 842, 164 S. E. 545, 546, speaking of the motion to strike the plaintiffs evidence when it has been concluded and before the defendant has offered any evidence, said:

"Where material facts and circumstances of a case lie peculiarly within the knowledge of the defendant, or peculiarly within the knowledge of both the plaintiff and the defendant, it is a very drastic proceeding to strike out all the plaintiffs evidence on a motion made at the conclusion of the plaintiff's evidence in chief, before the defendant has testified. A motion to strike out made under such circumstances should not be sustained unless it is very plain that the court would be compelled to set aside a verdict for the plaintiff upon a consideration of the evidence strictly as upon a demurrer to the evidence, and in the light of the fact that the defendant has seen fit not to testify and subject himself to cross-examination. Where a motion to strike out is made after all the evidence for both parties has been introduced or upon a. motion to set aside a verdict, a somewhat more liberal rule is sometimes ap-plied for the consideration of the evidence in passing upon the motion; but in cases such as this (where the motion to strike out is made at the conclusion of the plaintiff's evidence in chief), the court will rigidly apply the rule applicable to the consideration of evidence upon a demurrer to the evidence."

When we apply the foregoing rule to the evidence in the case at bar, it is apparent that there was sufficient evidence of the primary negligence of the defendant to have carried that question to the jury, for, when we look to the evidence, we find that the truck which was loaded with green lumber was descending a steep hill and approaching the bridge at 40 to 50 miles per hour where the plaintiff and two other men were standing, and a piece of the lumber "flew" off and struck the plaintiff. Those facts, which must be taken as established, and the physical surroundings, and all of the just and reasonable inferences that could be drawn from the evidence favorable to the plaintiff, constituted sufficient evidence to have submitted the question to the jury. From the established facts it could reasonably be inferred that the lumber was not securely packed and fastened upon the truck or it could be just as reasonably inferred that the speed of the truck was excessive considering the surroundings at the time. Whether the driver of the truck was negligent in failing to drive it carefully and at a prudent speed not greater nor less than was reasonable and proper, with due regard for the conditions then existing, and was so driving as not to endanger the life or property of another, was, under the facts here, for the jury to determine.

|5, 6] It is contended that the plaintiff was guilty of contributory negligence as a matter of law because he was at the time of the accident violating the statute of Virginia (section 2145 (73) (h), which is here quoted: "Pedestrians shall not use the highways, other than the sidewalks thereof, for travel, except when obliged to do so by the absence of sidewalks, reasonably suitable and passable for their use, in which case they shall keep as near as reasonably possible to the extreme left side or edge of same." This brings up the question of whether or not the plaintiff was a pedestrian on the highway within the meaning of the statute quoted above, and, if so, whether or not, as such a pedestrian, his violation of the statute by his position on the bridge at the time of the accident rendered him guilty of contributory negligence as a matter of law, so as to bar any right of recovery.

It is not necessary to the decision of this case to determine the status of the plaintiff; that is, whether or not he was a pedestrian at the time the injury was inflicted, because, if we assume that he was a pedestrian, and at the time violating the statute, that does not affect the ultimate conclusion to be reached, because his violation of the statute, if a pedestrian, was not the cause of the injury. This is but another way of saying that there must be causal connection between the violation of the statute and the injury, otherwise the violation becomes immaterial. It is the well-settled law of this state that, unless it is shown that his violation of a statute was the proximate or contributing cause of the injury, the plaintiff is not barred from a right to recover. Kinsey v. Brugh, 157 Va. 407, 161 S. E. 41; Chesapeake & O. R, Co. v. Barlow, 155 Va. 863, 156 S. E. 397.

In the case of Kinsey v. Brugh, supra, where the plaintiff in violation of the statute was driving a buggy on the highway after dark without displaying a light, and the defendant driving his car ran into the rear of the buggy, this court upheld the judgment of the lower court based on...