Ellett v. Carpenter

• Decision Date: 12 June 1939
• Citation: 3 S.E.2d 370
• Court: Virginia Supreme Court
• Parties: ELLETT . v. CARPENTER et al.

3 S.E.2d 370

ELLETT .

v.CARPENTER et al.

Supreme Court of Appeals of Virginia.

June 12, 1939.

Rehearing Denied Sept. 19, 1939.

Error to Circuit Court, Culpeper County; Alexander T. Browning, Judge.

Action by Russell Ellett, an infant, by A. C. Ellett, his next friend, against Ray Carpenter and Stella Carpenter for injuries sustained by Russell Ellett in an automobile collision at an intersection. To review a judgment for defendants following setting aside of verdict for plaintiff, the plaintiff brings error.

Affirmed.

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

Burnett Miller and C. T. Bowers, both of Culpeper, for plaintiff in error.

C. O'Conor Goolrick, of Fredericksburg, for defendants in error.

HUDGINS, Justice.

This writ of error brings under review the proceedings in the trial of an action instituted to recover damages for personal injuries sustained by Russell Ellett in an automobile accident. The jury returned a verdict for $10,000. This verdict was set aside by the court, and final judgment was entered for defendants. This ruling constitutes the only error assigned.

The accident occurred about 3:30 p. m. on October 4, 1937, at the intersection of Main and Evans streets in the town of Culpeper. Main street runs north and south. Evans street runs east and west, and crosses Main street at right angles. Where Evans street enters the western edge of Main street, it is 28 feet wide, and at the eastern edge of Main street it is 25.2 feet wide. Main street is 46% feet wide from curb to curb, but at its intersection with Evans, and for some distance south, there is no curb and no sidewalk, and its full width is 60 feet. Plaintiff was driving north on Main street in a 1934 Ford "pick-up" truck. Mrs. Carpenter, one of defendants, was proceeding east on Evans street in a Chevrolet coach. J. M. Pierce, 18 years of age, was riding in plaintiff's truck, and seated on the right side. On the southwest corner of the intersection there is a service station with the usual gas pumps in front, all of which are back several yards from the property lines (the exact distance is not stated in the record). Thus the occupants of the respective vehicles had an unobstructed view of the streets for some distance (the exact measurement is not given) before reaching the intersection. This view was partly obstructed by alarge van with a trailer that was standing three feet from the western curb of Main street and a half block to the south of the service station.

Pierce testified that the truck had traveled one-quarter of the distance across the intersection before he saw the defendants' car approaching, and that it was then 80 feet west of the intersection. He stated that, after the truck had traveled three-quarters of the way across the intersection, or less than 14 feet, the defendants' bumper struck the left rear fender and caused the truck to turn over on its right side and skid some distance to the northeast side of Main street; it then righted itself, turned over on its left side, skidded in a semicircle to the opposite or west side of Main street, and came to rest on its left side with its front pointing in the opposite direction from which it was proceeding. Ellett was caught under the truck and rendered temporarily unconscious. Pierce crawled out of the right door.

After a view of the scene by the judge and jury, Pierce was again called as a witness and made substantial changes in his testimony, which will be hereafter noted.

Mrs. Carpenter, the operator of defendants' car, testified that before entering the intersection she stopped her car and looked both north and south on Main street. Seeing that the way was clear, she entered the intersection either in low or second gear, traveling 8 or 9 miles an hour. She did not look south again. The first time she saw plaintiff's truck was when it was immediately in front of her, and east of the center of Main street. The only part of the car which touched the truck was her front bumper. This impact was caused by the operator of the truck trying to cross the intersection in front of her. She immediately stopped her car and saw the truck as it passed, turning over first on one side and then on the other and coming to rest on its left side with its front pointing in her direction. After the accident she crossed the intersection and stopped on the right-hand side of Evans street east of the intersection. At the time of the accident she had 2 children,. 8 and 6 years of age, on the back seat and, on the floor of her car, an open oyster bucket on one-gallon capacity "a little over half full of milk." This bucket was not overturned in the collision "and-- about two tablespoons of milk, maybe not that much" was spilled. The only mark on her car which indicated that it had been in an accident was a slight scratch on her front bumper.

This accident occurred in open daylight when visibility was good. Several witnesses testified that while the pavement was wet from recent rains, it was not misting or raining at the time. Each driver had a clear unobstructed view of the other vehicle some distance before either reached the intersection. Neither saw the other until it was too late to avoid the accident. Mrs. Carpenter's exact language was "when I got about halfway over a Ford truck came up, and glanced against my car." Also, "when I first saw the truck it was middle way of the cab; then it just glanced my bumper." Ellett testified: "Did you see it (defendants' car) when it struck you?" "No, sir." "Did you see it before it struck you?" "No, sir." Pierce, in answer to a question as to what direction Ellett was looking, said, "He was looking straight in front of him. He had just wiped his windshield and took his hand off the wiper."

Before defendants introduced any testimony, they moved to strike the evidence. The trial court, in ruling on this motion, said: "On the question of the primary negligence, as to whether this evidence sustains primary negligence, you rely, in a large measure, on the evidence of Mr. Pierce, necessarily, Mr. Miller?

"By Mr. Miller: And the plaintiff's too.

"By the Court: I say, in large measure. Mr. Pierce's evidence is contradictory in itself, to some extent. His evidence made yesterday morning and his statement made after the view are somewhat conflicting. * * * Mr. Pierce's evidence is, as I say, contradictory. On the question of primary negligence I am speaking now. The deductions to be had from the truck, itself, to my mind, are not definite. Here is a truck that had been through the accident of sliding on its side, skidding on its side, of turning over twice, and must, necessarily, have been physically greatly damaged. I think the conclusion is almost inescapable that there was much greater damage to that truck from what happened after the impact than what happened at the impact, making any deductions from the physical condition of the truck, itself, rather far-fetched. I think, perhaps, those wheels may have been broken, andthe probability is they were broken, by the sliding and turning over, rather than the impact. However, Mr. Pierce does testify that there was impact, and if that was caused by the negligence of the defendant and was the primary cause of the condition of this truck, that would not relieve the defendant of negligence, if she were otherwise guilty of negligence, and, primarily, also, the question...