Caldwell v. Parker, 3711
| Decision Date | 27 November 1950 |
| Docket Number | No. 3711,3711 |
| Citation | 62 S.E.2d 34,191 Va. 471 |
| Parties | ANNIE C. CALDWELL, ADMINISTRATRIX OF THE ESTATE OF ROBERT ELVIN CALDWELL, DECEASED v. DAVID N. PARKER. Record |
| Court | Virginia Supreme Court |
Phillips, Marshall & Blalock, for the plaintiff in error.
Newman & Allaun, for the defendant in error.
David N. Parker obtained a verdict and judgment for $3,250.00 against Annie C. Caldwell, administratrix of Robert Elvin Caldwell, deceased, for personal injuries and property damage resulting from a collision between an automobile he was driving and one operated by defendant's decedent.
The parties will be hereinafter referred to in accordance with their positions in the court below.
Two questions are presented by defendant's assignments of error:
(1) Was the plaintiff guilty of contributory negligence as a matter of law that bars his recovery?
(2) Was the evidence sufficient to support defendant's Instruction F so that its refusal was reversible error? This instruction would have submitted to the jury the factual issue of whether or not plaintiff was operating his automobile while under the influence of intoxicants.
Determination of these questions requires that the evidence be set out at some length.
The accident happened in Warwick county at about 10:30 p.m., June 17, 1948, on Route 351 (otherwise known as 39th Street superhighway) just west of its intersection with Chestnut Avenue. Plaintiff, who was the only occupant of his car, received serious injuries and his automobile was practically demolished. Robert Elvin Caldwell, a Virginia State Trooper, driver of the other car, was killed, and a companion trooper, Charles L. Bailey, painfully injured.
State Route 351, over which there is much traffic, is forty-four feet, six inches wide, and extends from Newport News on the west to Hampton on the east. It is divided into four traffic lanes and is intersected at right angles by Chestnut Avenue, which extends in a northerly and southerly direction. The hard-surface of that street is twenty-seven feet, nine inches wide. Traffic at the intersection is controlled by two lights synchronized to change in unison. One is suspended over and governs the movement of traffic upon the two west-bound lanes, and the other over and governing traffic on the east-bound lanes. Eastwardly from the intersection Route No. 351 is level and straight for three-tenths of a mile at which point it gradually turns northeastwardly. Westwardly from the intersection the road is straight for a like or greater distance. On the northwest corner and situated somewhat back from Route 351, which it faces, is a filling station, food and drink establishment, called Curb Club Restaurant. A driveway entrance and exit from this tavern or restaurant enters the north side of the highway slightly west of Chestnut Avenue.
During the afternoon several hours before the accident, plaintiff and a Mr. Ferguson, who worked with him in Newport News, decided to go to Smithfield when they finished work to inspect a Frozen Food Plant. Plaintiff purchased a pint of 86 proof whiskey and they left in his automobile about 6:15 p.m. While crossing the James River Bridge at the western limits of Newport News each had a drink from the bottle and then took a second drink before they reached Smithfield. They stopped on the edge of that city at a 'Drive-In' restaurant and while there saw a friend to whom was offered a drink. All three then participated in the refreshments and shortly thereafter plaintiff and Ferguson consumed what remained in the bottle. The two then left the car and entered the 'Drive-In' where each had a sandwich, a cup of coffee and a bottle of beer. After that they visited and went through the Frozen Food Plant and then drove back to Newport News. Upon reaching that city, Ferguson parted company with plaintiff.
It was then about 10:00 p.m., and plaintiff drove on towards his home but on the way stopped at Curb Club Restaurant and parked his car in the parking area of that establishment. He entered and ordered a bottle of beer, which he drank and engaged in conversation for thirty to forty-five minutes with one James Street, the proprietor, and some other acquaintances. He then departed, entered his car and undertook to proceed from the driveway into and across the north half of Route 351 to the south half thereof, with the intention of there turning more directly to his left and proceeding thence in an easterly direction towards Hampton. He says that before entering the highway and as he drove to the curb, he stopped and looked in each direction, but seeing no car, he slowly proceeded forward into the road, looked again to his left, and seeing nothing undertook to cross and turn eastwardly, which movement would bring him up to and facing the traffic light on the south side of the road. He further says that the traffic light was red for east and west bound traffic just before he entered the highway and that when he had about reached the center of the road preparatory to turning more directly east, he was violently struck by Trooper Caldwell's Ford car which was traveling westwardly. However, other evidence indicates that the light had changed from red to green when the Trooper's car approached and entered the intersection.
The testimony of Trooper Bailey was that a few moments before the accident, Trooper Caldwell set out in pursuit of a speeding car moving along Route 351 from the direction of Hampton towards Newport News, which vehicle, if it continued its course, would eventually cross Chestnut Avenue. This car, he says, was traveling at a speed of fifty miles per hour or more when first seen. It, however, seems to have probably increased that speed for in some way it eluded the troopers and they had lost sight of it before the accident actually happened. Yet the speed of the Ford car driven by Trooper Caldwell is estimated by witnesses to have been from 65 to 80 miles per hour, or possibly more, as it approached Chestnut Avenue and the scene of the tragedy. One witness says she was first attracted by the noise of that oncoming vehicle and described what she heard and saw as follows:
Another witness placed the speed of the trooper's car at sixty-five to seventy miles per hour and a third witness estimated its speed from seventy-five to eighty miles per hour. Trooper Bailey said they were traveling as fast as the Ford could go in their pursuit of the fleeing car, and Sgt. Nottingham of the ...
To continue reading
Request your trial
-
Dodd v. Coakley
...1, 181 S.E. 370; Greenleaf v. Richards, 178 Va. 40, 16 S.E. (2d) 374; Brown v. Wallace, 184 Va. 570, 35 S.E. (2d) 793; Caldwell v. Parker, 191 Va. 471, 62 S.E. (2d) 34; Clayton v. Taylor, supra, 193 Va. 555, 69 S.E. (2d) 424; Hebner v. Sullivan, 194 Va. 259, 72 S.E. (2d) 689; Tellis v. Tray......
-
Pistolesi v. Staton
...a driver has a duty to look for approaching traffic with reasonable care under all the surrounding circumstances. Caldwell v. Parker, 191 Va. 471, 62 S.E.2d 34 (1950); Angell v. McDaniel, 165 Va. 1, 181 S.E. 370 (1935). Thus, if the intersection is in a populated community and the speed lim......
-
Bays v. Jenks, Civ. A. No. 82-0132-H
...of a like nature under the circumstances". See also Virginia Transit Co. v. Tidd, 194 Va. 418, 73 S.E.2d 405 (1952); Caldwell v. Parker, 191 Va. 471, 62 S.E.2d 34 (1950). For the foregoing reasons, the motion for dismissal or summary judgment shall be denied. An appropriate Order will this ......
-
Basham v. Terry
...on one's breath is not sufficient to prove intoxication. Burks v. Webb, Administratrix, 199 Va. 296, 99 S.E.2d 629; Caldwell v. Parker, 191 Va. 471, 62 S.E.2d 34. In the recent case of Bogstad v. Hope, 199 Va. 453, 458, 100 S.E.2d 745, the driver admitted that he had drunk alcoholic beverag......