Ellett v. Carpenter

• Decision Date: 12 June 1939
• Docket Number: Record No. 2072.
• Citation: 173 Va. 191
• Parties: RUSSELL ELLETT, AN INFANT, BY A. C. ELLETT, HIS NEXT FRIEND, v. RAY CARPENTER AND STELLA CARPENTER.
• Court: Virginia Supreme Court

Page 191

173 Va. 191

RUSSELL ELLETT, AN INFANT, BY A. C. ELLETT, HIS NEXT FRIEND, v. RAY CARPENTER AND STELLA CARPENTER.

Record No. 2072.

Supreme Court of Virginia, Wythebille.

June 12, 1939.

Present, All the Justices.

1. APPEAL AND ERROR — Weight of Verdict — Verdict Disapproved by Trial Court. — A verdict which has been disapproved by the trial judge is not entitled to the same weight on appeal as one that has been approved by him.

2. NEW TRIALS — Setting Aside Verdict — When Verdict to Be Set Aside. — The trial judge cannot set aside a verdict merely because if on the jury he would have found a different verdict. He must be satisfied from the evidence adduced either that there was no evidence to support the verdict, or that the verdict was plainly contrary to the evidence. This conclusion must be drawn from the whole evidence in the case, but in arriving at his conclusions he has somewhat more latitude than the Supreme Court of Appeals would have in passing upon a verdict that was sanctioned by the judgment of the trial court.

3. AUTOMOBILES — Intersections — Duty of Driver. — It is the duty of the operators of vehicles, on approaching an intersection, to keep a proper lookout to ascertain whether there is any vehicle approaching such intersection either from the right or left.

4. AUTOMOBILES — Collision at Intersection — Right of Way — Insufficiency of Evidence to Show That Plaintiff Had Right of Way — Case at Bar. — In the instant case, an action for injuries received in an automobile collision at a street intersection, plaintiff contended that his truck entered the intersection first and therefore he had the right of way. He introduced as a witness to substantiate his contention his companion, but the testimony of this witness was conflicting and contradictory. According to the testimony of this witness as to the point of collision, defendants' car must have traveled 30 feet into the intersection while plaintiff's truck traveled but 14 feet. Testimony that defendants' car was moving very slowly was corroborated by the fact that it was stopped with insufficient force to disturb two small children in the back seat or to spill milk in a bucket on the front floor.

Held: That plaintiff had failed to prove that his vehicle entered the intersection first, which ordinarily would have given him the right of way.

5. AUTOMOBILES — Collision at Intersection — Right of Way — Duty of Driver Having Right of Way — Case at Bar. — In the instant case, an action for injuries received in a collision between an automobile and a truck at an intersection, plaintiff contended that his truck entered the intersection first and therefore he had the right of way, but the evidence showed that neither driver saw the other before the impact.

Held: That even if plaintiff had the right of way, he was still under the duty to exercise due care to proceed with ordinary circumspection in order to avoid injury to other users of the highway.

6. AUTOMOBILES — Collision at Intersection — Contributory Negligence — Evidence Showing Contributory Negligence as Matter of Law — Case at Bar. — In the instant case, an action for injuries sustained in a collision between an automobile and a truck at an intersection, neither driver saw the other approaching. The driver of defendants' car testified that it was moving very slowly and was struck only a glancing blow, and this testimony was corroborated by the fact that it was stopped with insufficient force to disturb two small children on the back seat or to spill milk in a bucket on the front floor. The only makr on defendants' car was a slight scratch on the front bumper. Plaintiff contended that he entered the intersection first and therefore had the right of way, but the proof failed to sustain his contention. The trial court set aside a verdict for plaintiff on the ground that he was guilty of contributory negligence as a matter of law.

Held: No error.

Error to a judgment of the Circuit Court of Culpeper county. Hon. Alexander T. Browning, judge presiding.

The opinion states the case.

Burnett Miller and C. T. Bowers, for the plaintiff in error.

C. O'Conor Goolrick, for the defendants in error.

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

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 1/2 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 a large 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 of 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;...