Crew v. Nelson
| Decision Date | 08 September 1948 |
| Citation | 188 Va. 108,49 S.E.2d 326 |
| Court | Virginia Supreme Court |
| Parties | CREW. v. NELSON et al. |
Error to Hustings Court of Richmond, Part II; Brockenbrough Lamb, Judge.
Action by Virginia Nelson against Brooks Transportation Company, incorporated, and James H. Brown and Charles W. Crew for injuries resulting when truck in which plaintiff was riding as a guest passenger ran into rear of a tractor-trailer truck owned and operated by Brooks Transportation Company and driven by its employee, James H. Brown. To review an adverse judgment, defendant Crew brings error.
Judgment affirmed.
Before EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.
Denny, Valentine & Davenport, of Richmond, for plaintiff in error.
May, Simpkins, Young & Rudd and Williams & O'Connor, all of Richmond, for defendants in error.
Virginia Nelson, while riding as a guest passenger in a truck driven by Charles W. Crew, was badly injured when that vehicle ran into the rear of a tractor trailer truck owned and operated by Brooks Transportation Company, Incorporated, driven by its employee, James H. Brown, and which had come to a stop on the paved portion of the highway.
To recover damages for the injuries sustained, Miss Nelson instituted an action at law against Brooks Transportation Company, Incorporated, Brown and Crew. Since she was a guest passenger in the truck driven by Crew, her action against him was predicated upon the theory that he was guilty of gross negligence which proximately caused the collision and her injuries. Michie's Code of 1942, § 2154(232); Acts 1938, ch. 285, p. 417.
The trial below resulted in a verdict in favor of the plaintiff against the defendant, Crew, alone, and in favor of the other defendants, Brooks Transportation Company, Incorporated, and Brown, upon which judgment was entered. The matter is now before us on a writ of error allowed Crew. The determinative issue is whether the evidence sustains the verdict and judgment. For convenience we shall refer to the parties as they appeared in the court below.
The collision occurred at about 8:30 a. m. on January 23, 1946, approximately a mile and a half south of Ashland, on U. S. Highway No. 1. The road at that point is level and straight for a distance of about a mile, and is divided into four ten-foot traffic lanes. At the time the pavement was dry, the weather was clear, and the visibility, was good.
While the Crew truck was proceeding southwardly, at approximately fifty miles per hour, it crashed into the rear of a large tractor trailer truck of the Brooks Transportation Company, Incorporated, which had been proceeding in the same direction, but had come to a stop in the right-hand traffic lane, with all of its wheels on the paved portion of the highway.
The drivers of the two vehicles were called as adverse witnesses by the plaintiff and gave widely divergent accounts of how the collision occurred.
Brown, the driver of the Brooks truck, testified that as he proceeded southwardly along the highway he observed another Brooks' truck stopped west of the highway, apparently disabled. Upon seeing this he slowed his truck down gradually and came to a stop some seventy-five or eighty yards south of the disabled truck. He did not pull off on the shoulder because his truck was heavily loaded and the shoulder was soft. He got out of the truck and went back to offer his assistance to the driver of the disabled truck. Brown said that after talking to the other driver from three to five minutes, he started to return along the road to his own truck, and before reaching it the Crew truck, proceeding southwardly at about fifty miles per hour, and apparently without attempting to slow down or change its direction, ran into the rear of the Brooks truck.
Brown's testimony is corroborated in some respects by that of Tate, the driver of the disabled Brooks truck, who, however, did not see the collision.
Crew's story is that he had been following the Brooks truck at a safe distance for about a quarter of a mile; that as he was overtaking the Brooks truck and preparingto pass it on the left, without any signal of his intention to do so the driver of the Brooks truck brought his vehicle to a sudden stop immediately in front of his (Crew's) truck, making it impossible for him to avoid the collision.
Under fair and proper instructions it was left to the jury to say which of these accounts or descriptions of the collision they would accept. Without objection, the jury were told that even if they believed from the evidence that "the Brooks truck was negligently stopped on the highway, " yet if it had been there "sufficiently long for Crew to have seen it in time to avoid collision with it, " had he been exercising proper care, "then such negligence on the part of Brown, " in stopping on the highway, was "a remote rather than proximate cause of the collision, " which would absolve the Brooks Company and Brown from liability therefor.
The verdict in favor of the Brooks Company and Brown shows that the jury accepted Brown's version as to how the collision occurred, and concluded that his negligence, if any, in stopping his truck on the paved portion of the highway was the remote and not the proximate cause of the collision. Manifestly, there was ample evidence to support such finding and it is conclusive here.
We are of opinion that there was ample evidence to support the jury's finding that Crew was guilty of gross negligence which proximately caused the collision. Viewed in the light of the verdict the evidence shows that in broad daylight on a straight wide road, where the visibility was good and his view was unobstructed, Crew drove his truck, at an undiminished speed of fifty miles per hour, into the rear of this large trailer truck which was, to borrow a phrase of the late Justice Holt, "as obvious as an elephant, " 1 had he been keeping a proper lookout.
Indeed, counsel for Crew admit that if the plaintiff (Miss Nelson) is entitled to re ly upon Brown's testimony, then the record amply supports a verdict against Crew, based upon proof of gross negligence.
But counsel for Crew earnestly contend that under the doctrine enunciated in Massie v. Firmstone, 134 Va. 450, 461, 462, 114 S.E. 652, and frequently...
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...a litigant testifies unequivocally to facts within his knowledge and upon which his case turns, he is bound thereby. ' Crew v. Nelson, 188 Va. 108, 113, 49 S.E.2d 326; Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652; Virginia Electric and Power Co. v. Mabin, 203 Va. 490, 493, 125 S.E.2d......
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