Cooke v. Griggs, Record No. 2920.
| Decision Date | 23 April 1945 |
| Docket Number | Record No. 2920. |
| Citation | 183 Va. 851 |
| Court | Virginia Supreme Court |
| Parties | A. G. COOKE AND CECIL WILLIAMS, JR., AN INFANT, ETC. v. HATTIE POWELL GRIGGS, ADMX., ETC. |
1. VERDICT — Conclusiveness. — Where the evidence is conflicting and there is a verdict and judgment for the plaintiff in the trial court, the Supreme Court of Appeals must consider the evidence in the light most favorable to the plaintiff.
2. AUTOMOBILES — Negligence — Collision of Automobile with Bicycle — Sufficiency of Evidence — Case at Bar. — In the instant case, an action by an administratrix to recover damages for the death of her infant son, evidence of an eyewitness, who had a clear and unobstructed view of the collision between the bicycle on which the infant was riding and a truck owned by defendant, was that the bicycle was on the highway close to the right-hand side of the road in front of the approaching truck and that the truck overtook the bicycle and its bumper hit the rear wheel of the bicycle throwing the boy against the truck and to the ground. Several other witnesses testified that the infant, at the time of the accident, was riding his bicycle with his left hand holding on to the body of the truck and that suddenly the bicycle's front wheel turned into the truck and the collision resulted. The jury returned a verdict in the sum of $7,000.
Held: That the jury had the opportunity to observe the demeanor and attitude of the witnesses, their opportunity to know the facts, and they saw fit to believe the evidence favoring the plaintiff in preference to the evidence in conflict therewith, and there was sufficient evidence to fully sustain their verdict.
3. APPEAL AND ERROR — Affirmance — Where Evidence Conflicting — Effect of Verdict of Jury. — The verdict of a jury rendered upon conflicting evidence, under proper instructions, and approved by the trial court will not be disturbed by the Supreme Court of Appeals when there is sufficient credible evidence to support it.
4. AUTOMOBILES — Negligence — Collision of Automobile with Bicycle — Failure of Driver to Keep Proper Lookout — Case at Bar. — In the instnat case, an action by an administratrix to recover damages for the death of her infant son, evidence of an eyewitness who had a clear and unobstructed view of the collision between the bicycle on which the infant was riding and a truck owned by defendant, was that the bicycle was on the highway close to the right-hand side of the road in front of the approaching truck and that the truck overtook the bicycle and its bumper hit the rear wheel of the bicycle throwing the boy against the truck and to the ground. Several other witnesses testified that the infant at the time of the accident, was riding his bicycle with his left hand holding on to the body of the truck and that suddenly the bicycle's front wheel turned into the truck and the collision resulted. The jury returned a verdict in the sum of $7,000.
Held: That accepting the evidence, as the jury did, that the bicycle was on the highway in front of the truck, it was clear that if the driver of the truck did not see the infant it was because he failed to keep a proper lookout and his failure to exercise reasonable and ordinary caution and care constituted actionable negligence.
5. NEGLIGENCE — Contributory Negligence — Elimination of Words "in Any Extent" from Instruction — Case at Bar. — In the instant case, an action for wrongful death, the trial court eliminated from an instruction the words "in any extent" as measuring the quantum of contributory negligence to bar a recovery.
Held: No error.
6. NEGLIGENCE — Contributory Negligence — Triviality of Contributory Negligence. — Contributory negligence as a defense must be more than merely trivial, it must be a contributing cause of the accident.
7. NEGLIGENCE — Proximate Cause — Elimination of Word "Sole" before Words "Proximate Cause" in Instruction — Case at Bar. — In the instant case, an action by an administratrix for the wrongful death of her infant son, the court struck out the word "sole" before the words "proximate cause" in an instruction requested by defendants which told the jury that the burden of proof was upon plaintiff to prove by a preponderance of evidence that defendants were guilty of negligence, and that the negligence was the proximate cause of the injury.
Held: No error, since the plaintiff was not required to prove that the infant was free from contributory negligence, but was only required to show that the negligence of the defendants was the proximate cause of the injury, the burden of proving contributory negligence being on defendants.
8. INSTRUCTIONS — Repetitious Instruction. — An instruction is properly refused where it is covered by instructions given.
9. DAMAGES — Excessive Damages — Case at Bar. — The instant case was an action by an administratrix to recover for the wrongful death of her infant son. The con was one of six children and the mother was a widow. He had three sisters, aged respectively 10, 12 and 22, and two brothers, respectively 8 and 16 years of age. He was 14 years of age, a first-year high school student, and assisted his family by working after school hours and during the summer. The jury returned a verdict for $7,000.
Held: That the verdict was not excessive.
10. ARGUMENTS AND CONDUCT OF COUNSEL — Objection to Argument — Time of Making. — Objection to improper argument before a jury should be made at the time of such argument.
Error to a judgment of the Circuit Court of Nansemond county. Hon. John K. Hutton, judge presiding.
The opinion states the case.
J. Melvin Lovelace and James H. Corbitt, for the plaintiffs in error.
M. Anderson Maxey and Chas. B. Godwin, Jr., for the defendant in error.
This action was instituted by Hattie P. Griggs, Administratrix of the estate of Dudley James Griggs, Jr., to recover damages for the death of her infant son, Dudley James Griggs, Jr., which resulted from injuries sustained in a collision between a bicycle upon which he was riding and a truck owned by A. G. Cooke and operated by Cecil Williams, Jr. A motion to strike the evidence of the plaintiff, after all of the evidence was concluded, was overruled. The jury returned a verdict for the plaintiff against both defendants in the sum of $7,000. Defendants immediately made a motion to set aside the verdict as contrary to the law and the evidence, without evidence to support it and excessive. Seven days later they moved to set aside the verdict "on the further ground of improper argument before the jury". The trial court overruled each of these motions and entered judgment according to the verdict.
The plaintiffs in error, hereinafter referred to as the defendants, contend that the trial court erred in overruling the foregoing motions, and in addition erred in granting and refusing certain instructions.
The principal question involved is the sufficiency of the evidence to sustain the verdict of the jury. The evidence is highly conflicting. In view of the verdict of the jury and the judgment of the court, we must consider it in the light most favorable to the plaintiff.
On the afternoon of June 28, 1943, Dudley James Griggs, Jr., 14 years of age, riding a bicycle, was returning to his home in Nansemond county from his work in the city of Suffolk. He was bound west on State Highway No. 58, a three lane highway, level, smooth, straight and paved with concrete. The day was clear and bright. When he was about one-half of a mile westerly from the city limits and a distance of 200 feet easterly from a gasoline service station, on the north or right hand side of the highway, operated by Thomas E. Worrell, there was a collision between his bicycle and a Ford truck owned by A. G. Cooke and driven by Cecil Williams, Jr. The rear wheel of the bicycle was crushed, Dudley was thrown against the truck and on to the ground. His face and skull were badly crushed, and his right arm broken. Death resulted shortly thereafterwards.
Thomas E. Worrell was an eyewitness to the collision. He was standing in front of his gasoline...
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