Carter v. Nelms
| Decision Date | 10 June 1963 |
| Docket Number | No. 5562,5562 |
| Citation | 131 S.E.2d 401,204 Va. 338 |
| Parties | EUGENE CARTER, ADMINISTRATOR OF THE ESTATE OF GRACE CARTER, DECEASED v. NADINE EDWARDS NELMS. Record |
| Court | Virginia Supreme Court |
S. W. Coleman, Jr., (Coleman & Coleman, on brief), for the plaintiff in error.
Jay G. Kauffman and Emanuel Emroch (Frank N. Cowan, on brief), for the defendant in error.
Nadine Edwards Nelms, while riding as a passenger in a car driven by her husband, Charles Nelms, Jr., was injured when that car collided with another driven by Grace Carter. Mrs. Nelms filed a motion for judgment against Mrs. Carter to recover damages for her injuries. Pending the suit Mrs. Carter died of causes unrelated to the accident and her husband, Eugene Carter, as administrator, was substituted as party defendant. There was a trial before a jury which resulted in a verdict and judgment in favor of the plaintiff, Mrs. Nelms, against Mrs. Carter's administrator for the sum of $18,945.80. We granted the defendant administrator a writ of error.
On appeal the defendant administrator contends that the verdict is contrary to the law and the evidence in that there was no showing that Mrs. Carter was guilty of negligence which was a proximate cause of the accident, that the negligence of Nelms, the driver of the other car, was the sole proximate cause, and that, in any event, the plaintiff, Mrs. Nelms, was guilty of contributory negligence; the lower court erred in the admission and exclusion of certain evidence and in its rulings on the instructions.
There is a motion by the plaintiff appellee to dismiss the appeal on the ground that the appellant has failed to designate for printing everything germane to the errors assigned, as required by Rule 5:1, § 6. The main point of attack is that the designation does not include all of the evidence which is necessary and material for a determination of the sufficiency of the evidence; that it includes mainly the evidence favorable to the appellant and omits much that is favorable to the appellee.
We have several times pointed out the necessity for compliance with this rule. In DeMott v. DeMott, 198 Va. 22, 24, 92 S.E.2d 342, 343, we said: See also, Jenkins v. Womack, 201 Va. 68, 69, 109 S.E.2d 97, 98.
The purpose of the rule is to incorporate in the printed record everything essential and germane to an intelligent determination of the errors assigned and to relieve the court of the burden of looking to the manuscript record for this purpose. Hall, Adm'x v. Miles, 197 Va. 644, 645, 646, 90 S.E.2d 815, 817; Whitlow v. Grubb, 198 Va. 274, 276, 93 S.E.2d 134, 135.
In the present case the designation for printing by the appellant includes some evidence favorable to the plaintiff appellee, but, in violation of the rule, omits considerable other evidence favorable to that party. While this violation of the rule would justify us in refusing to consider the assignments of error involving the sufficiency of the evidence, such drastic action will not be taken here because upon consideration of all of the pertinent evidence, including that designated and that omitted, we find that it is sufficient to sustain the verdict.
The accident occurred on the late afternoon of February 18, 1960, on U.S. Highway No. 23 in Scott county. At the scene this highway runs in a southeasterly and northwesterly direction and is paved to a width of 19 1/2 feet. Just before the impact the Nelms car was proceeding southeasterly and following a truck. The Carter car was proceeding in its proper lane in the opposite direction. When the Nelms car reached the end of a 'no-passing' zone, as indicated by a solid line painted on the pavement, Nelms turned to the left, drove across the center line of the highway into his left-hand lane and passed the truck. In doing so, the Nelms car collided head on with the oncoming Carter car.
It is undisputed that at the time of the collision the Carter car was not displaying its headlights. But there is a sharp conflict in the evidence as to the time of the accident, the condition of the visibility, and whether lights on vehicles were necessary under Code (1958 Replacement Volume), § 46.1-268. At the time of the collision this statute required the display of headlights on a vehicle upon a highway in this State from a half hour after sunset to a half hour before sunrise and at any other time when, due to insufficient light or unfavorable atmospheric conditions, 'persons in vehicles on the highway' are not clearly discernible at a distance of 500 feet. (Emphasis added.)
The evidence shows without dispute that the sun set on the day of the accident at 6:17 P.M. The plaintiff, Mrs. Nelms, introduced evidence which tended to show that the accident occurred between 6:30 and 7:00 P.M., after dark, when it was snowing hard, visibility was poor, and lights were required on vehicles.
On the other hand, the testimony on behalf of the defendant, Carter, is that the collision occurred between 5:30 and 5:45 P.M., during daylight, when the visibility was good and lights on vehicles were not necessary.
Nelms testified that he had been following the truck some distance before the collision and but for the curving road and oncoming traffic would have passed it on several occasions; that when he emerged from the 'no-passing' zone he accelerated his speed, sounded his horn, and passed the truck; and that because the oncoming Carter car was displaying no headlights he was unable to see it and avoid the collision. He further said that it was dark, snowing hard, and that the visibility was poor. Both his car and the truck, he said, were displaying headlights.
The verdict of the jury has, of course, settled in favor of the plaintiff the conflict in the evidence as to the time of the accident and the need for displaying the headlights on the Carter car because of insufficient light or unfavorable atmospheric conditions, as required by the statute. (Code, § 46.1-268.) The jury had the right to find from the related circumstances that this failure of Mrs. Carter to display the headlights on her car constituted negligence which was a proximate cause of the collision. See Barry v. Tyler, 171 Va. 381, 387, 199 S.E. 496, 499; Simmons v. Craig, 199 Va. 338, 343, 99 S.E.2d 641, 645.
Conceding, but not deciding, that Nelms was likewise guilty of negligence in passing the truck and driving into the lane occupied by the Carter car, in the manner and under the circumstances related, it was for the jury to say whether such negligence of Nelms, if any, was the sole proximate cause of the accident. That issue the jury have also resolved in favor of the plaintiff under proper instructions.
There was evidence that the plaintiff, Mrs. Nelms, was observing the traffic lines on the pavement and advising her husband whether and when it was safe for him to pass the truck. The defendant appellant argues that in so doing she was a joint operator of the car and was guilty of contributory negligence as a matter of law. We do not agree with this contention. This evidence does not show that the plaintiff was an active participant in the operation of the car. She merely undertook to advise her husband when their car had cleared the 'no-passing' zone. There is no evidence that she gave him any directions or advice as to whether it was safe for him to undertake to pass the truck ahead of him. The decision to do so was his and not hers.
But, in any event, whether this conduct on the plaintiff's part constituted contributory negligence was submitted to the jury and decided in her favor. Clearly that decision was correct.
Complaint is made that the lower court permitted counsel for the plaintiff to contradict the testimony of the defendant, Carter, given at the trial, by showing that it was inconsistent with certain statements made by him in the report of the accident which he filed with the Division of Motor Vehicles, pursuant to Code, § 46.1-400. It is argued that this evidence is in violation of Code, § 46.1-408, which reads as follows: 'No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the Division shall furnish upon demand of any person who has or claims to have made such a report or upon demand of any court a certificate showing that a specified accident report has or has not been made to the Division, solely to prove compliance or noncompliance with the requirement that the report be made to the Division.' See also, Willis v. Commonwealth, 190 Va. 294, 56 S.E.2d 222.
The ready answer to this contention is that there was no objection to such evidence at the time of its introduction nor at any time before the verdict. The question was first raised as 'additional ground' in support of the motion to set aside the verdict. Clearly this was too late.
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Graves v. Commonwealth
...must determine the legislative intent by what the statute says and not by what we think it should have said." Carter v. Nelms , 204 Va. 338, 346, 131 S.E.2d 401, 406–07 (1963).3 I thus would not inquire as to "what the legislature meant" but instead "ask only what the statute means." Tvarde......
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...We must determine the legislative intent by what the statute says and not by what we think it should have said." Carter v. Nelms , 204 Va. 338, 346, 131 S.E.2d 401 (1963). We thus do not inquire as to "what the legislature meant; we ask only what the statute means." Tvardek v. Powhatan Vill......
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Tvardek v. Powhatan Vill. Homeowners Ass'n, Inc., Record No. 150456.
...We must determine the legislative intent by what the statute says and not by what we think it should have said." Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401, 406–07 (1963). Put another way, "[w]e do not inquire what the legislature meant; we ask only what the statute means." Oliver We......
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