Crawford v. Hite

• Court: Supreme Court of Virginia
• Citation: 10 S.E.2d. 561
• Parties: CRAWFORD. v. HITE.
• Decision Date: 05 September 1940

10 S.E.2d. 561

CRAWFORD.

v.HITE.

Supreme Court of Appeals of Virginia.

Sept. 5, 1940.

Error to Circuit Court, Montgomery County; T. L. Keister, Judge.

Action by Bentley Hite, administrator of Myrtle C. Cook, deceased, against Woody E. Crawford for death of deceased who was struck by a truck which was owned and operated by the defendant. To review an adverse judgment, defendant brings error.

Affirmed.

Argued before CAMPBELL, "C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Harvey B. Apperson, of Salem, and God-din & Hardy, of Richmond, for plaintiff in error.

R. I. Roop and Bentley Hite, both of Christiansburg, for defendant in error.

EGGLESTON, Justice.

On the early morning of January 11, 1938, Mrs. Myrtle C. Cook, while walking along State Highway No. 8, near Blacks-burg) in Montgomery county, was struck by a truck proceeding in the same direction and owned and operated by Woody E. Crawford. Shortly thereafter Mrs. Cook died of the injuries which she received and her administrator has recovered a verdict and judgment against Crawford which are before us for review.

The principal assignment of error is that the verdict is contrary to the law and the evidence; that the operator of the truck was not guilty of negligence; and that Mrs. Cook was guilty of contributory negligence.

The accident occurred before sunrise. It was still dark, the atmosphere was foggy, and the ground was covered with about two and one-half inches of snow. Crawford had come upon the highway some distance south of the point where the accident occurred. He proceeded northwardly along the highway for the purpose of picking up a fellow workman, Busby Collins, who was supposed to be waiting for him on the side of the road. As Crawford proceeded northwardly along the highway in search of Collins, he passed Mrs. Cook who was walking with her daughter in the opposite direction. The daughter was carrying a torch. After having gone northwardly a short distance along the road, Crawford realized that he had passed Collins without seeing him. Accordingly, Crawford turned around and proceeded in the opposite direction, that is, southwardly and in the direction in which Mrs. Cook was walking.

Crawford testified that he was traveling at approximately twenty miles per hour along the middle of the road with the left wheels of the truck slightly to the east or left of the center of the road; that while both his headlights and marker lights were burning, the fog was so dense that he could not discern an object over fifteen or twenty feet from him; that he met the Cook daughter, who had left her mother and was returning towards her home in a northwardly direction, still carrying the light; that suddenly an object loomed up not over twenty feet ahead of him; that he touched his brake and the rear end of the truck started to skid to the right; and that almost immediately the left front fen-der and left front headlight struck Mrs. Cook who was walking ahead.

By the time Crawford had brought his truck to a stop and had alighted to render first aid to Mrs. Cook, Collins had reached the scene. It developed that he had seen the entire occurrence. Collins testified that when he first saw Mrs. Cook she was about thirty yards from him; that the truck was about ninety yards further down the road and overtaking Mrs. Cook; and that as the truck approached her he realized her peril and called out a warning to her which apparently she did not hear. He also testified that Mrs. Cook was walking on the paved portion of the road and within four feet of the left or east side of the highway.

Other persons who arrived on the scene within five or ten minutes of the accident testified that a pedestrian could be seen on the road for a distance of seventy-five or one hundred yards.

Several witnesses testified that Crawford admitted that he did not see Mrs. Cook until his truck had struck her.

From this evidence we think the jury was warranted in finding that the operator of the truck was negligent. Admittedly he was driving with his left wheels on the wrong side of the road. He knew that he was overtaking Mrs. Cook who was walking along the road ahead of him. Although the visibility was very poor he did not once sound his horn to warn her of his approach.

While Crawford testified that the fog was so dense he could not have seen Mrs. Cook for a distance of more than twenty feet, there was other evidence from which the jury had the right to infer that he could have seen her at a much greater distance if he had been exercising a proper lookout.

Moreover, if he had been driving on the right side of the road he would have passed her safely for she was well on his left.

It is argued that in walking on the hard-surfaced portion of the road instead of on the shoulder, Mrs. Cook was guilty of contributory negligence which bars a recovery here. This contention is not sound. Even if it be conceded that she was guilty of negligence in walking on the pavement, this does not necessarily preclude a recovery because there was ample evidence to support the finding of the jury that the driver of the truck, by the exercise of ordinary care, could or should have seen Mrs. Cook in a position of danger and could have avoided running into her. In such a situation the jury had the right to find that the negligence of the deceased was the remote cause and that of the driver was the sole proximate cause of the collision. See Parker v. Norfolk Orange

Crush Bottling Co., 175 Va.----, 8 S.E.2d 301.

Plaintiff in error complains of the action of the lower court in admitting testimony that the members of the family of the deceased were in financial distress, that her husband was a helpless invalid and that one of their daughters was feeble-minded. It is argued that none of this evidence was material to any of the issues involved and that it was calculated to stimulate the sympathy of the jury and to cause them to bring in a verdict based on compassion for those who were entitled to share in the proceeds of the recovery.

These propositions are well settled in this State:

(1) In a suit for damages for personal injuries evidence of the financial condition of the plaintiff is not admissible. A person wrongfully injured is entitled to be compensated therefor regardless of whether he be rich or poor. Washington-Virginia Rv. Co. v. Deahl, 126 Va. 141, 150, 100 S.E. 840.

Likewise, in a personal injury suit, it is improper to show that the plaintiff has a number of persons dependent on him. This is so because the amount recovered is the property of the injured person and the members of his family have no interest therein. Southern Ry. Co. v. Simmons, 105 Va. 651, 659, 55 S.E. 459.

(2) In an action for damages for wrongful death, evidence of the pecuniary condition of the deceased and the members of his family is inadmissible for the purpose of proving the liability of the defendant or the quantum of the damages. This is so because the statute (Code, § 5787, as amended by Acts 1920, ch. 25, p. 26) gives a right of recovery to the personal representative of the deceased for the benefit of certain members of the family of the deceased, of damages in a sum not exceeding $10,000, regardless of whether the deceased or the members of his family are rich or poor. Chesapeake & Ohio Ry. Co.v. Ghee's Adm'x, 110 Va. 527, 5337 66 S. E. 826; Colonial Coal & Coke Co. v. Gass, Adm'x, 114...