Crist v. Fitzgerald

• Decision Date: 07 March 1949
• Docket Number: Record No. 3447.
• Citation: 189 Va. 109
• Court: Virginia Supreme Court
• Parties: NICK CRIST v. MRS. DAVID (BLANCHE) FITZGERALD.

Page 109

189 Va. 109

NICK CRIST v. MRS. DAVID (BLANCHE) FITZGERALD.

Record No. 3447.

Supreme Court of Virginia, Richmond.

March 7, 1949.

Present, All the Justices.

1. AUTOMOBILES — Collision of Automobile with Parked Trailer — Sufficiency of Evidence to Show Driver Kept Proper Lookout — Case at Bar. — The instant case was an action for personal injuries sustained in the collision of an automobile in which plaintiff was riding with a trailer operated by defendant and parked at night, without lights, on a highway. The driver of plaintiff's car testified that she was proceeding at between thirty and thirty-five miles an hour with her lights burning and was keeping a careful lookout, but that the trailer was of a dark color, so that she could not distinguish it from the road; that she had no warning of any character of an obstruction on the road, and that when she was about twenty feet from the trailer, which was blocking the entire right-hand side of the highway, she observed it; that she immediately applied her brakes and turned her wheel to the left, but that the car began to skid and slid into the trailer. Her passengers corroborated her testimony. Defendant said he had placed a boy about forty feet to the rear of the trailer with a flashlight and that several other vehicles were warned by his lookout in time to avoid collision. It was not claimed that the light disclosed the presence of the trailer. Defendant contended plaintiff's evidence showed that her driver should have been aware of the trailer in time to avoid striking it if she had kept a proper lookout.

Held: That this contention overlooked the testimony of plaintiff's driver and her passengers, and the fact that if she had seen a person waving a flashlight on the road, she would not necessarily have known what such a light meant.

2. AUTOMOBILES - Negligence — Failure to Maintain Lights on Trailer Parked on Highway — Case at Bar. — In the instant case, an action for personal injuries sustained in the collision of an automobile in which plaintiff was riding with a trailer operated by defendant and parked at night, without lights, or a highway, defendant violated sections 2154(145), 2154(133) and 2154(133a) of the Code of 1942 (Michie), in that he failed to display a red light on the rear of his vehicle, visible under normal atmospheric conditions from a distance of three hundred feet, did not remove it from the highway within a reasonable tiem, and placed no flares or torches on the highway. He allowed this condition to continue from 4 p.m. to the time of the collision at about 7 p.m.

Held: That such negligence made a collision not only possible but highly probable.

3. NEGLIGENCE — Violation of Statute as Standard. — The violation of a statute constitutes negligence per se, and if it proximately causes or contributes to an injury, it will support a recovery of damages for such injury.

4. STREETS AND HIGHWAYS — Right to Assume Highway Is in Safe Condition — Case at Bar. — In the instant case, an action for personal injuries sustained in the collision of an automobile in which plaintiff was riding with a trailer operated by defendant and parked at night, without lights, on a highway, the driver of plaintiff's car testified that she was proceeding at between thirty and thirty-five miles an hour with her lights burning and keeping a careful lookout, but that the trailer was of a dark color, so that she could not distinguish it from the road, and that she was about twenty feet from it when she observed it. Defendant contended plaintiff's evidence showed that her driver should have been aware of the trailer in time to avoid striking it if she had kept a proper lookout.

Held: That plaintiff's driver had the right to assume that no vehicle or obstruction would be parked on the highway in front of her.

5. NEGLIGENCE — When Proximate Cause a Jury Question — Case at Bar. — The instant case was an action for personal injuries sustained in the collision of an automobile in which plaintiff was riding with a trailer operated by defendant and parked at night, without lights, on a highway. The driver of plaintiff's car testified that she was proceeding at between thirty and thirty-five miles an hour with her lights burning and keeping a careful lookout, but that the trailer was of a dark color, so that she could not distinguish it from the road; that she had no warning of any character of an obstruction on the road, and that when she was about twenty feet from the trailer, which was blocking the entire right-hand side of the highway, she observed it; that she immediately applied her brakes and turned her wheel to the left, but that the car began to skid and slid into the trailer. Her passengers corroborated her testimony. Defendant said he had placed a boy about forty feet to the rear of the trailer with a flashlight and that several other vehicles were warned by his lookout in time to avoid collision but that plaintiff's driver was going fifty-five or sixty miles an hour as she approached. He contended that plaintiff's evidence showed her driver should have been aware of the trailer in time to avoid striking it if she had kept a proper lookout, and that her negligence was an intervening independent act, insulating his negligence, if any, and the sole proximate cause of the collision as a matter of law.

Held: That there was nothing inherently incredible in the version of the accident and its cause as related by plaintiff's witnesses. The facts were in dispute, and the question whether plaintiff's driver was using reasonable and ordinary care, under the circumstances, and whether her negligence, if any, became the sole proximate cause of the collision, notwithstanding the original negligence of defendant, became one for the jury. It was only when the facts were susceptible of but one inference, and reasonable men could reach but one conclusion from them, that the question became one of law for the court.

6. BEST AND SECONDARY EVIDENCE — Admission of Secondary Evidence to Prove Plaintiff's Hospital Expense — Case at Bar. — In the instant case, an action for personal injuries sustained in the collision of an automobile in which plaintiff was riding with a trailer operated by defendant, plaintiff was confined as a result of her injuries in a hospital in another state, where she remained fifty-six days and received considerable attention. During the trial her counsel was placed on the stand to prove the amount of her hospital bill. He testified that in his capacity as plaintiff's attorney he had requested and received the bill and the trial court then allowed him to offer it, made out on the hospital's business stationery, in evidence. Defendant contended that proof by this witness was inadmissible because it was not the best evidence of the amount of expense incurred by plaintiff.

Held: That if the bill had been sent to plaintiff she could have testified as to the amount demanded of her, and the information was secured by her agent and attorney. While the better proof of plaintiff's expenses should have come from the source that rendered the services, no harmful error was committed in admitting the evidence under the circumstances, since the trial court lacked power to compel the attendance of witnesses from another state who had personal knowledge of the amount of the bill and the custody of the hospital's records.

7. EVIDENCE — Admissibility — Introduction of Hospital Bill in Action for Personal Injuries Not Prejudicial to Defendant - Case at Bar. — In the instant case, an action for personal injuries sustained in the collision of an automobile in which plaintiff was riding with a trailer operated by defendant, plaintiff was seriously and permanently injured as a result of the collision and remained in a hospital for fifty-six days, receiving considerable attention. During the trial plaintiff's counsel was allowed to prove the amount of her hospital bill. Defendant claimed that the admission of the bill in evidence might have influenced the jury in arriving at the amount of the verdict.

Held: That the admission of the evidence was not prejudicial to defendant. The jury, as reasonable men, could hardly doubt that a hospital and medical bill, under the circumstances, would be substantial, and the bill merely stated the character of the services rendered and the charges therefor, neither of which were claimed to be excessive.

Error to a judgment of the Circuit Court of Tazewell county. Hon. Vincent L. Sexton, Jr., judge presiding.

The opinion states the case.

Crockett & Gillespie, for the plaintiff in error.

Smith & Peery and M. Crockett Hughes, Jr., for the defendant in error.

SPRATLEY, J., delivered the opinion of the court.

Nick Crist asks us to reverse the judgment and set aside the verdict which Mrs. David (Blanche) Fitzgerald recovered against him for personal injuries sustained in the collision of an automobile, in which she was riding as a passenger, with a trailer, operated by the defendant and parked, without lights, upon a State highway.

The parties will be referred to according to their respective positions in the trial court.

In view of defendant's contention that the trial court erred in refusing to strike the evidence of the plaintiff because it showed that the negligence of the driver of the car in which Mrs. Fitzgerald was riding was the sole proximate cause of the collision, the evidence will be stated somewhat in detail.

On January 30, 1947, Mrs. Fitzgerald and Mrs. Sallie Saunders were passengers in an automobile being driven by Miss Maxine Fitzgerald, the twenty-three-year-old daughter of the plaintiff. They left their home at Boissevain about 6:15 p.m., travelling on State Highway No. 80, southerly towards Bluefield, Virginia, where Miss Fitzgerald intended to attend a night session of a business college. Miss Fitzgerald had driven back and forth on the same highway in pursuance of her attendance upon her nightly class...