Burnette v. McDonald

• Decision Date: 14 June 1965
• Citation: Burnette v. McDonald, 142 S.E.2d 495, 206 Va. 186 (1965)
• Court: Virginia Supreme Court
• Parties: Donald Gray BURNETTE v. Harley L. McDONALD, Administrator, etc.

Page 495

142 S.E.2d 495

206 Va. 186

Donald Gray BURNETTE v.Harley L. McDONALD, Administrator, etc.

Supreme Court of Appeals of Virginia.

June 14, 1965.

Edwin B. Meade, Danville (Meade, Tate & Meade, Danville, on brief), for plaintiff in error.

W. Carrington Thompson, Chatham, for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

GORDON, Justice.

The primary issue presented, in this action for wrongful death, is whether the testimony of a thirteen-year-old boy was sufficient to support the verdict and the judgment for the plaintiff.The plaintiff's case depended on his testimony.The defendant says that it was inconsistent and incredible, and therefore insufficient.

The defendant asks that the plaintiff's judgment for $16,000 be reversed and final judgment for the defendant be entered here.In the alternative, he seeks a reversal and remand because of the erroneous instruction to be discussed.

The plaintiff's decedent, Calvin Ray McDonald, who was four years old, died after he was struck by an automobile driven by Donald Gray Burnette, the defendant and appellant.The accident happened on State Highway 40, about one mile east of Gretna.The defendant was proceeding east on the highway, and Calvin and his older brother Dale (the thirteen-year-old witness mentioned in the opening paragraph, who was eleven years old at the time of the accident) were crossing the highway, from the north to the south side, when Calvin was struck by the defendant's automobile in its proper lane of travel.The width of the highway is approximately twenty feet.

Before the accident, Dale and other boys were playing hide-and-seek.Calvin, who had joined in the game, and his brother Dale were hiding behind bushes on the property of Dalton, who lived on the north side of the highway.The base for the game was behind a pickup truck, on the south side of the highway and in the trailer court where the McDonald family lived.Calvin and Dale were 'called home'--the boy who was 'it' could not find them--and they were headed across the highway toward the base when the accident happened, resulting in Calvin's death.

The highway was dry at the time of the accident, and visibility was good.The point of impact was visible, to a driver of an automobile headed east (the direction in which the defendant was driving), beginning at a point in the highway near a white house, identified as Clay's house.This point was more than 500 feet from the point of impact.¹When the driver was approximately 285 feet from the point of impact, the Dalton yard was visible, unless his vision was obstructed by vehicles on the highway.There was a 4.2 foot-high paling fence on the west boundary of the Dalton property (between his property and the Amos property to the west), which began at a point twelve and one-half feet from the northern edge of the highway and extended back in a northerly direction.

The speed limit at this section of the highway was fifty-five miles per hour, and the defendant was driving at approximately fifty miles per hour.Skid marks were visible after the accident; they began in the eastbound lane of travel and veered to the right, extending eighty-four feet to the rear wheels of the automobile, where it stopped after the accident (on or near the south shoulder of the highway).The defendant estimated that his automobile had traveled fifty feet of these eighty-four feet when Calvin was struck by the front of the automobile, on the left side.

According to the defendant, he passed a big van-trailer-truck headed west (the opposite direction) at a slow rate of speed, when he was at a point almost opposite the paling fence at the west boundary of the Dalton property; that 'As soon as the truck went by, immediately I was close to the end of the truck.Then the boys ran out right behind the truck, right in front of me'.The boys were at the edge of the heard surface, between fifteen and thirty feet ahead of his automobile, as estimated by the defendant, when he first saw them.

The boys, according to the defendant's witnesses, were about three feet apart and were not holding hands.Both were running, with the large boy (Dale) in front.Dale stopped near the center of the highway, and Calvin continued across the highway, 'slanting toward the radio station [to the east]'.

The accident happened under quite different circumstances, according to the evidence in chief of Dale McDonald.This testimony will be outlined in the next paragraph.

Dale testified that the truck passed in front of Calvin and him when he was about twenty-one feet from the north edge of the highway.When the boys had reached a ditch, about eight feet from the north edge of the highway, Dale looked to his left (east) and saw nothing and, then, to his right (west) and saw the defendant's automobile in front of Clay's house--more than 500 feet from the point of impact.The two boys then proceeded across the highway, holding hands.They stopped in the westbound lane, near the center line of the highway, when the defendant's automobile was 'About in front of Mrs. Amos' mail box', approximately 165 feet away.They stopped to permit the defendant's automobile to pass in front of them.Suddenly, 'Calvin [who was standing behind Dale] jerked loose of my hand and tried to make it across the road before the car did'.

In view of the verdict for the plaintiff, we must accept Dale's testimony, as outlined in the preceding paragraph, unless inconsistent evidence given by him, or the incredibility of his evidence, renders it insufficient to support the verdict.Before considering his inconsistent statements, or the credibility of his evidence, we will refer to the legal principles that support the verdict and judgment for the plaintiff, based on the evidence outlined above, resolving all conflicts in the plaintiff's favor.

'If an operator of a motor vehicle sees or should have seen a child in or near the street it is his duty to take into consideration the fact that the child might act thoughtlessly and upon childish impulse, heedless of danger, put himself in a position of peril.Hence an operator must exercise that degree of care that a person of ordinary prudence would exercise under similar facts and circumstances to avoid injury to the child.'Read v. Daniel, 197 Va. 853, 857, 91 S.E.2d 400, 404.The same rule is stated, and the Virginia cases reviewed, in Boyd v. Brown, 192 Va. 702, 66 S.E.2d 559.

Furthermore, Calvin McDonald, being four years old, was legally incapable of contributory negligence.Atlantic Coast Line R. Co. v. Clements, 184 Va. 656, 36 S.E.2d 553;seeAlexander v. Moore, 205 Va. 870, 140 S.E.2d 645;Grant v. Mays, 204 Va. 41, 129 S.E.2d 10.

Under the evidence in this case, viewed most favorably to the plaintiff, the defendant should have seen Calvin and Dale McDonald, when the boys were standing in the highway and the defendant's automobile was far from them; and the defendant should have taken into consideration the possibility that Calvin might act thoughtlessly and under childish impulse, as he did when he ran across the eastbound lane of traffic in front of the defendant's automobile.Therefore, the defendant was required to exercise the degree of care that a person of ordinary prudence would have exercised under similar facts and circumstances to avoid injury to Calvin McDonald.The trial court properly submitted to the jury the question whether the defendant exercised that degree of care.See, in addition to Read v. Daniel, supra, Saulsbury v. Williams, 205 Va. 727, 139 S.E.2d 816;Vought v. Jones, 205 Va. 719, 139 S.E.2d 810;Gabbard v. Knight, 202 Va. 40, 116 S.E.2d 73;andPortsmouth Transit Company v. Brickhouse, 200 Va. 844, 108 S.E.2d 385, 78 A.L.R.2d 149.A different factual situation was presented by the plaintiff's evidence in Boyd v. Brown, supra, 192 Va. 702, 66 S.E.2d 559, where final judgment for the defendant was entered in this court.

The most recent Virginia case involving injury to an infant, Virginia Transit Company v. Schain, 205 Va. 373, 137 S.E.2d 22, has no bearing upon the decision in this case.There, the infant ran into the side of a bus, and, as stated in the opinion, 'there was no direct testimony placing the plaintiff and the northbound bus in such relative positions, one to the other, that the bus driver came under a duty to see and avoid the plaintiff'.(See205 Va. 373, 377, 137 S.E.2d 22, 25.)The plaintiff attempted to support the verdict in his favor by an inference to be drawn from the evidence--an inference that the driver of the bus was not keeping a proper lookout.We found that such an inference was in derogation of the evidence in that case, and entered final judgment for the defendant.The plaintiff in the case now before us does not rely, however, upon an inference to be drawn from the evidence.Here, there was direct testimony to the effect that Calvin and Dale McDonald were in plain view of the defendant before the defendant arrived at the scene of the accident.

Turning to the inconsistencies in Dale McDonald's testimony, we find that certain of the inconsistent statements related to matters that had no connection with the accident or the cause of the accident, and were relevant only as bearing on the credibility of the witness.For example, Dale stated that Calvin and he walked across the highway to the Dalton yard and walked back across the highway, contradicting his earlier statement that they ran to the Dalton yard.Other inconsistent statements involved recollections or estimates of points and distances,...