Doss v. Rader
| Decision Date | 01 March 1948 |
| Citation | 46 S.E.2d 434,187 Va. 231 |
| Court | Virginia Supreme Court |
| Parties | DOSS . v. RADER. |
From the Circuit Court of Botetourt County; Earl L. Abbott, Judge.
Action by Thomas F. Rader against Frank L. Doss for injuries sustained in an automobile collision. To review an adverse judgment, defendant brings error.
Reversed and remanded.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.
Curtis Simpson, of Roanoke, for plaintiff in error.
Stuart B. Carter, of Fincastle, for defendant in error.
This writ of error brings under review a verdict and judgment rendered on behalf of Thomas F. Rader against Frank L. Doss in an action for damages for personal injuries sustained in an automobile collision. The collision occurred at the intersection of a primary highway, U. S. Route No. 220, and a secondary highway, Route No. 650, about one and one-half miles south of Fincastle, in Botetourt county. Route No. 220 runs north and south and is a hard-surfaced road, paved to a width of 20 feet, with the usual dirt or gravel shoulder on either side. Route No. 650 runs east and west and intersects Route No. 220 approximately at right angles on the east side thereof, but does not cross it.
The collision occurred about 9 a. m. on Sunday, January 14, 1945. It had been raining, the weather was damp and foggy, and the pavement was slippery.
The Rader car was proceeding northwardly along Route No. 220 toward the intersecting road which ran off to its right. The Doss car had been proceeding westwardly along the secondary road No. 650, and had come to a stop partly in the intersection preparatory to making a left turn and proceeding southwardly along the primary road No. 220.
Looking south from the intersection, in the direction from which the Rader carapproached, there is a clear view for about 1500 feet along Highway 220 to the crest of a hill. From the crest of this hill, going north, the primary road is downgrade for a distance of about 1200 feet, thence upgrade for a distance of 300 feet to the intersection. From the intersection the upgrade continues for a further distance of about 350 feet to the crest of another hill. In other words, as the Rader car approached the intersection it was proceeding upgrade.
According to the testimony of both drivers, there was some fog in the valley or dip in the primary road south of the intersection.
Since the case must be remanded for a new trial, we will relate only so much of the evidence as is necessary for a discussion of the several questions presented.
Rader testified that he approached the intersection at a speed of approximately 35 miles per hour; that his attention was first directed to a truck which had turned off the primary road and was proceeding eastwardly along the secondary road; that when he reached a point about 150 feet to 100 feet, or less, from the intersection, he looked ahead and for the first time saw the Doss car, at a standstill in the intersection, with its front projecting from 3 to 4 feet across the eastern edge of the pavement of the primary road, and thus partly blocking his (Rader's) line of travel; that he applied his brakes; that they "grabbed on the slick road"; that he released the brakes, then applied them again, and cut his car sharply to the left in the effort to pass in front of the Doss car; that he was unable to effect the passage; and that the right side of his car skidded against the left front of the Doss car.
Doss testified that he brought his car to a full stop before reaching the eastern edge of the primary road; that he looked both ways and saw no approaching traffic; that he then proceeded into the intersection and turned his car slightly to the left for the purpose of making a left turn and proceeding southwardly along Highway 2-20; that when the front of his car had crossed the eastern shoulder of the primary highway and was barely protruding into the eastern edge of the pavement, he saw the Rader car to his left, emerging from a bank of fog which was in the dip or valley of the road; that observing that the Rader car was coming at a rapid rate of speed, which he fixed at from 60 to 65 miles per hour, he (Doss) stopped his car in order to allow the Rader car to pass; and that when the brakes were applied to the Rader car it skidded for a distance of approximately 86 feet, striking the front of the Doss car and proceeding across the primary road, where it came to a stop partly in a ditch.
The gist of Rader's claim is that Doss was guilty of negligence in that he failed to keep a proper lookout for the Rader car; that he entered the intersection from a secondary into a primary road without observing the approaching car; and that he stopped his car on the highway, in violation of section 86 of the Motor Vehicle Code.1
On the other hand, Doss contends that the collision was proximately due to Rader's own negligence in that he was driving at a speed greatly in excess of the permitted rate of 35 miles per hour; that he failed to have his car under proper control, especially in view of the hazardous condition of the highway; that he failed to keep a proper lookout for the Doss car, and failed to direct his course to the left so as to avoid the collision.
Hence, Doss says, the trial court erred in not striking the plaintiff's (Rader's) evidence, or in not setting aside the jury's verdict, and in not entering a final judgment for him (Doss), the defendant.
In our opinion this assignment is not well taken. Whether under all of the evidence either driver was, or both were, guilty of negligence which proximately caused the collision were questions for the jury under proper instructions. See Green-leaf v. Richards, 178 Va. 40, 16 S.E.2d 374, and cases there cited.
Over the objection of Doss, the trial court admitted the testimony of several witnesses that on October 1, 1946, the day preceding the opening of the trial, tests hadbeen made both with the same automobile which Rader was driving at the time of the collision, and with other cars, driven at various speeds northwardly along the primary road approaching the intersection, in the same direction in which Rader was going, and that these tests showed that the noise of the approaching vehicles, in each instance, was plainly audible to a person standing in the intersection at the point where the Doss car had been stopped just prior to the collision.
From this evidence Rader reasoned that since Doss had testified that he had not heard the noise of the approaching Rader car, he (Doss) was not keeping a...
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