Cowles v. Zahn

• Decision Date: 17 January 1966
• Citation: 146 S.E.2d 200,206 Va. 743
• Court: Virginia Supreme Court
• Parties: Alphonso N. COWLES v. Charles E. ZAHN, Sr.

Page 200

146 S.E.2d 200

206 Va. 743

Alphonso N. COWLES v. Charles E. ZAHN, Sr.

Supreme Court of Appeals of Virginia.

Jan. 17, 1966.

A. Scott Anderson, Nathan H. Smith, Richmond (Donald R. Taylor, Williamsburg, Sands, Anderson, Marks & Clarke, Richmond, on brief), for plaintiff in error.

William L. Birdsong, Richmond (Robert E. Pembleton, Richmond, on brief), for defendant in error.

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

I'ANSON, Justice.

This is an action for personal injuries arising out of an automobile accident in which the trial court entered judgment on a jury verdict in the amount of $18,000 for the plaintiff, Charles E. Zahn, Sr., against the defendant, Alphonso N. Cowles, who is here on a writ of error to the judgment.

Defendant contends that the trial court erred in (1) refusing instructions on sudden emergency and assumption of risk; (2) not holding plaintiff guilty of contributory negligence as a matter of law; and (3) drawing its own diagram of the scene of the accident and making it the court's exhibit.

The accident occurred on the night of March 18, 1964, at approximately 8:15 P.M., on State route 33, in a 55 mile per hour zone, 2.7 miles east of New Kent Courthouse, Virginia. Route 33 is a two-lane road, 20 feet 4 inches wide, and runs generally east and west, but before reaching the scene of the accident there is a long sweeping curve to the left for eastbound traffic, a gradual dip in the road, and then a slight rise. The road was dry, the weather clear, and the night dark.

Plaintiff was driving his automobile east on route 33 toward West Point, Virginia, when its motor cut off. He pulled the car off the hard surface of the road onto the narrow shoulder as far as he could get it. After he was unable to restart it, he and his wife got out of the car, leaving all its lights on, and stood behind the car to await help. Shortly thereafter four men in a truck came upon the scene. The driver parked his truck ahead of plaintiff's car and all the men came back to offer assistance. They proceeded to examine the motor, and one of the men suggested that plaintiff turn on the starter. Plaintiff went to the left side of the car, which was on the hard surface of the road, opened the door, leaned in and turned on the starter switch, and while he was in this position defendant's car crashed into the rear of his car. Plaintiff was severely injured as a result of the collision.

The truck driver testified that he was driving a panel truck east on route 33 at a speed of 55 miles per hour, with three fellow employees as passengers, when he saw the Zahn car stopped on the highway about 500 to 600 feet ahead; that when he arrived on the scene he parked the truck five or six car lengths east of the Zahn car, left the lights burning and the parking lights flashing, and he and his companions went back to see if they could help; that the right wheels of the Zahn car were as far over on the narrow shoulder of the road as they could get; that he held up the hood of the Zahn car while his companions examined the motor; and that he then noticed a car pull slowly abreast of the Zahn car and at about the same time the impact occurred.

The testimony of the three passengers in the truck was substantially the same as the driver's, except they said they first saw the tail lights of the Zahn car when they were about 500 feet away.

Rev. Edward T. Gant testified that he was traveling east on route 33 at a speed of 55 miles an hour when he saw the tail lights of the Zahn car. He could not estimate how far he was from the vehicle when he first saw it, but he brought his car to almost a complete stop before turning into the westbound lane to pass. When his car was abreast of the Zahn car he turned to look at it and saw the headlights of defendant's car and immediately heard the crash. He did not see the lights of the truck parked ahead of the Zahn car until after he pulled into the westbound lane. A piece of flying glass punctured one of the tires on his car.

Mrs. Zahn testified that after their car stalled she stepped out of it onto the shoulder of the road and moved around in back of the car in order to stand on the hard surface; that almost immediately the men in the truck came up and offered help; that shortly thereafter the Gant automobile came by very slowly; that she saw defendant's car approach and 'it sounded like it was coming awful fast'; and that at the time of the accident her husband was standing in the road with the left front door of their car open, reaching in the car.

The investigating officer testified that the right wheels of defendant's car left 50 feet of skid marks leading up to the point of impact; that the skid marks were entirely in the eastbound lane and curved to the left before ending 3 feet 8 inches from the center line of the highway, and at that point he found glass, debris and gouge marks in the highway; that plaintiff's car was knocked along the highway 39 feet where it overturned, and the lights were still burning when he arrived on the scene; that defendant's car traveled 102 feet from the point of impact before coming to rest on the south side of the highway against an embankment; that the damage to plaintiff's car was on the left rear fender and to defendant's car on the right front fender; that plaintiff's car could not have been pulled completely off the hard surface because of the narrow shoulder of the road; that the collision occurred from 200 to 300 feet east of the end of the...