Farmer v. Valley Marine Center, Inc.
| Decision Date | 17 January 1966 |
| Citation | 146 S.E.2d 265,206 Va. 737 |
| Parties | Freda FARMER v. VALLEY MARINE CENTER, INC. |
| Court | Virginia Supreme Court |
Arthur E. Smith, Charles H. Osterhoudt, Roanoke (C. R. Langhammer, Roanoke, on brief), for plaintiff in error.
G. Marshall Mundy, Roanoke (John H. Thornton, Jr., Roanoke, Woods, Rogers, Muse & Walker, Roanoke, on brief), for defendant in error.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.
On March 9, 1964, Valley Marine Center, Inc., plaintiff, filed a motion for judgment against Freda Farmer, defendant, to recover the sum of $2,800 for property damage it sustained when an automobile owned by it and operated by its president and agent, Thomas H. S. Curd, Jr., was struck by a car driven by defendant.
Defendant's motions to strike plaintiff's evidence made at the conclusion thereof and renewed at the conclusion of all the evidence were taken under advisement, and the case was submitted to the jury who returned a verdict for plaintiff in the sum of $2,180. Whereupon, defendant moved the court to set aside the verdict on the grounds that it was contrary to the law and the evidence and that the jury had been improperly instructed. This motion as well as the motions to strike which had been previously made was overruled, and judgment was entered on the verdict. We granted defendant a writ of error.
In her assignments of error, defendant contends that the court erred (1) in refusing to strike plaintiff's evidence and to enter summary judgment for her; (2) in granting Instruction No. 2; and (3) in refusing to set aside the verdict as being contrary to the law and the evidence.
The evidence was somewhat conflicting, but under familiar principles it will be stated and considered in the light most favorable to plaintiff, the prevailing party in the court below.
The mishap occurred on February 19, 1963, at about 8:30 a. m. at the intersection of Corbieshaw road and Ashby street in the city of Roanoke. The intersection was not controlled by traffic signals or signs. Ashby runs in a general north-south direction, and Corbieshaw runs in a general east-west direction. The record does not show the width of either street. Approximately 72 feet south of the intersection, Ashby is intersected by Fleetwood street which runs in a general east-west direction and is parallel to Corbieshaw. There is a slight hill, or knoll, on Corbieshaw about 100 feet west of its intersection with Ashby, and from the crest of this hill the road follows a 'mild' downgrade towards Ashby. From Fleetwood to the intersection Ashby follows a 'mild' upgrade, and after it crosses Corbieshaw it proceeds up a hill. There is a church in the vicinity of the southwest corner of Corbieshaw and Ashby which obstructs the vision of the driver of a vehicle proceeding eastwardly on Corbieshaw so that he cannot see traffic coming north on Ashby until he is 60 or 70 feet from the intersection. In a similar manner, the church obstructs the view of the driver of a vehicle proceeding northwardly on Ashby of vehicles headed east on Corbieshaw.
On the morning in question it was snowing 'rather hard', and the streets were covered with an accumulation of 3 to 4 inches of snow. Weather conditions were 'very bad', and driving conditions were 'quite hazardous'. Thomas H. S. Curd, Jr., plaintiff's president, was proceeding east on Corbieshaw at a speed of 'ten to fifteen miles an hour'. His car was equipped with snow tires; its parking lights were on, and its windshield wipers were in use. As he came over the crest of the hill and passed the church he glanced to his right and saw defendant's vehicle headed north on Ashby at a speed of about 5 miles an hour. At that moment his vehicle was 60 to 70 feet from the intersection of Ashby and Corbieshaw, and defendant's car was proceeding through the intersection of Ashby and Fleetwood at a point approximately 80 feet away.
Curd testified:
'Proceeding over the hill, it became apparent to me that I was not only nearer to the intersection than Mrs. Farmer but, in addition, I had a downhill grade. She had an uphill grade. And, in addition to that, my speed of ten to fifteen miles an hour would have easily cleared me well through the intersection, based on her distance and her--my estimate of her speed at that time.
* * *
* * *
Curd said that he proceeded toward the intersection, looked to his left 'to be sure there was nothing coming', saw that 'everything was clear', and drove into the intersection. As the front end of his automobile was entering the intersection he again looked to his right and saw defendant's vehicle 'more than a car length' away from the intersection. Defendant's speed was increasing, and he 'could see then that we were going to have it.' He was sure that defendant had not seen him because he 'looked directly at her' and 'kept hoping' that she would see him, but 'she was looking straight ahead'. Curd blew his horn and attempted to apply his brakes, but he was 'completely unable to stop.' The left front of defendant's vehicle struck plaintiff's car on the right side and pushed it 'all the way across the street' into a post. Curd stated that he 'was almost out of the intersection' at the time of the impact.
Defendant testified that her car was not equipped with snow tires or chains but that its lights were on and its windshield wipers were in operation. As she approached the intersection of Ashby and Fleetwood she shifted to low gear and came almost to a complete stop. She then drove across Fleetwood and proceeded toward the intersection of Ashby and Corbieshaw at a speed of between 5 and 10 miles an hour. When she reached a point about 25 feet south of Corbieshaw she looked to her left and saw no traffic approaching on Corbieshaw. She then looked to her right, saw nothing coming, and began to cross Corbieshaw. As she 'started in the intersection' she saw Curd's vehicle for the first time and realized that 'he was not going to stop.' She did not apply her brakes, but made an unsuccessful attempt to turn to the right to avoid the collision.
Defendant argues that the evidence shows that Curd, the operator of plaintiff's vehicle, was guilty of contributory negligence as a matter of law. She relies heavily upon Code, § 46.1-221, which provides in part:
Defendant says that the two vehicles approached or entered the intersection at approximately the same time; that her car was on the right; that she had the right of way, and that Curd disregarded the...
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