Crouse v. Pugh

• Decision Date: 08 September 1948
• Citation: 49 S.E.2d 421,188 Va. 156
• Court: Virginia Supreme Court
• Parties: CROUSE. v. PUGH.

188 Va. 156

49 S.E.2d 421

CROUSE.

v.PUGH.

Supreme Court of Appeals of Virginia.

Sept. 8, 1948.

Rehearing Denied Oct. 12, 1948.

[COPYRIGHT MATERIAL OMITTED]

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

Action by Jesse Pugh against D. B. Crouse for personal injuries sustained as the result of being struck by defendant's automobile. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Before EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

Fred B. Gentry, of Roanoke, and M. S. McClung, of Salem, for plaintiff in error.

T. W. Messick and L. E. Hurt, Jr., both of Roanoke, for defendant in error.

SPRATLEY, Justice.

This action was instituted by Jesse Pugh to recover damages for personal injuries sustained by him as a result of being struck by an automobile owned and driven by D. B. Crouse, the defendant.

Both at the conclusion of the plaintiff's evidence and at the conclusion of all of the evidence, the defendant moved the court to strike out all of the plaintiff's evidence on the ground that it failed to show any negligence on the part of the defendant. The trial court overruled both motions. The jury returned a verdict for $5,000 in favor of the plaintiff, upon which the court entered judgment.

The defendant asks us to reverse the judgment and set aside the verdict as contrary to the law and the evidence and without evidence to support it, and because the trial court erred in granting and refusing certain instructions.

The contentions of the defendant necessitate a recital of the evidence somewhat in detail.

The accident occurred about 8:00 p. m. Sunday night, March 17, 1946, on Lee Highway (Route 11), approximately one quarter of a mile west of the corporate limits of the town of Salem, Virginia. Lee Highway runs east and west. At the point of the accident it is level and straight for approximately one-half a mile in each direction, east and west, and consists of an eighty-foot right of way with thirty and two-tenths feet of hard surface in its center. The hard surface is divided into three separate traffic lanes designated by white markers, each approximately four-tenths of a foot wide. On its south side there is a space fourteen feet in width, herein referred to as a shoulder, consisting of a travelled portion, six feet wide, surfaced with gravel, and eight feet of dirt and grass. There are no sidewalks on either side for pedestrians. On both sides there is a thickly settled community, largely residential, but which includes some business places, such as a filling station, a tea room, and a tourist court.

Jesse Pugh, thirty-three years of age, lived just west of the corporate limits of Salem on the south side of the highway. On the afternoon of March 17, 1946, he went to the home of A. W. Hall, a friend, who also lived some distance south of the highway and west of the home of Pugh. His visit lasted approximately two hours, during which he drank a bottle of beer. He left the home of Hall in company with a friend, Harry Foutz. Both walked along a private road until they reached the south edge of the right of way of the highway, where there was a building known as Richards Dry Cleaning Company. At this point Pugh and Foutz parted company. Foutz turned to his left and started travelling in a westerly direction. Without crossing the highway, Pugh turned to his right and proceeded easterly towards his home, walking on the gravel shoulder on the southern portion of the right of way of the highway, that is, on the right side thereof. At a point seven hundred and seventy feet east of the point where he entered the highway, he was struck by an automobile being driven eastwardly by the defendant. He sustained a compound fracture of the left leg, concussion of the brain, and suffered multiple contusions and abrasions about the body. His hospital and medical expenses amounted to $690.37. Hewas unable to resume his usual work for thirty-five months.

The evidence of the facts surrounding the accident are sharply in conflict. The case made by the plaintiff and his witnesses shows that while it had rained on and off during the afternoon of that day, it was not raining at the time of the accident and there was no fog. The road was wet. Vehicular travel on the highway was heavy, and the cars were "running pretty fast." Under these conditions, Pugh was walking eastwardly on the gravel shoulder off the right edge of the hard surface of the road when he was, without warning, struck from behind by the automobile of the defendant. The first person to reach the scene found him unconscious, with his head about eighteen inches to two feet from the hard surface and his feet pointing towards the ditch on the southern boundary of the highway. Broken glass from the headlight of the defendant's car was scattered on the shoulder of the road, and the body of the plaintiff was lying on a large section of the glass. There was no glass on the paved surface.

Edward H. Foutz, driving an automobile westwardly in the north lane of the highway that evening, saw Pugh a short distance west of the point of the accident walking eastwardly on the gravel shoulder on the south side of the road and waved to him. He said the weather was clear and visibility was good because of lights shining along the highway. He observed that Pugh was "walking where pedestrians usually and customarily walked." This witness drove forward two or three blocks, turned around, and immediately returned eastward. On his return he and one of his children saw the body of Pugh lying on the gravel shoulder. He was the first one to reach the scene after the accident. He saw the car of the defendant where it had been stopped one hundred and fifty-eight feet to the east and the defendant coming towards Pugh. Pugh was unconscious and the witness thought he was dead. His body was pointed towards the hard surface, his head being about eighteen inches to two feet therefrom and his feet towards the ditch.

Two other witnesses testified to the same location of the body of Pugh.

The testimony of the defendant and his witnesses was that it was a cloudy, rainy night, and that it was necessary for operators of automobiles to operate their windshield wipers.

Crouse testified that he was driving about twenty-five to thirty miles an hour on his right side of the road, with his left front wheel near the southern white line of the middle lane; that immediately prior to the accident, he met an oncoming car travelling west in the north lane with bright lights; that he was unable to get the driver of that car to dim his lights; that he, the defendant, was blinded by the lights, hut, nevertheless, dimmed his own lights and continued moving east, watching the white line on the road to see that he stayed in his proper lane; that just as the oncoming car passed him, he saw the plaintiff six feet in front of him on the hard surface of the road just to the right of the center of the front of his car; that he slammed on his brakes but struck the plaintiff on the pavement before he could stop; and that the wheels of his car did not leave the pavement, nor did the car run over Pugh after the impact. He thereafter drove his car about fifty feet, stopped on the side of the road, went back to aid the injured man, and found Pugh, dressed in dark clothes, with his head lying on the hard surface of the road and his body on the shoulder. Other witnesses said they saw Pugh's head about six inches on the pavement.

An examination of the defendant's car disclosed that, as a result of the collision, his right front headlight and its glass were broken and dents had been made in the right front fender and in the right side of the hood of his car.

The defendant said his bright headlights would light up the highway one hundred and fifty to two hundred feet ahead of him; but when he dimmed his lights he had a clear vision ahead for only twenty-five or thirty feet. Asked to explain why he didn't see Pugh until he was within six feet of him, when, just before the accident, with his bright headlights, he should haveseen him for a distance of one hundred and fifty feet or more, and with his dim lights a distance of at least twenty-five or thirty feet, he said: "I can't explain why I didn't see him."

Two days after the accident, when asked by the father of the plaintiff how it occurred, the defendant said "I will just tell you the truth. It was so dark I couldn't see my hand in front of me that way." (Holding up his hand in indication.)

Thus, the position of the plaintiff on the highway at the time he was struck became a material, if not the most material, question in the case. The evidence of the plaintiff and his witnesses unequivocally placed him on the gravel shoulder. The physical facts, such as the location of the body of Pugh and the shattered glass solely on the shoulder furnished support and corroboration. The defendant failed to explain why he didn't see Pugh before he got within six feet of him.

The defendant contended that whether Pugh was walking on the pavement or on the right shoulder he was, in either event, guilty of negligence as a matter of law by reason of the provisions of Virginia Code 1942, (Michie), section 2154(126) (f), now subsection (g), and that such negligence was the efficient and proximate cause of the accident.

The evidence, we think, was sufficient to submit to the jury the question of the negligence of the respective parties, under proper instructions.

The trial court gave seven instructions at the instance of the plaintiff and five for the defendant. Defendant contends that the court erred in granting plaintiff's instructions numbered 5, 6, 7, and 10, and in refusing requested instructions A, D, X, Y, and Z.

Instruction number 5 related to the duty of the defendant in the event he became temporarily blinded by the lights of an approaching car. It is in the exact language approved in Howe v. Jones, 162 Va. 442, 448, 174 S.E. 764. The evidence amply supports...