Ferguson v. Ferguson
| Decision Date | 14 June 1971 |
| Citation | 181 S.E.2d 648,212 Va. 86 |
| Parties | Olvin Tamlin FERGUSON v. Myrtle C. FERGUSON, Executrix of the Estate of Olvin Lewis Ferguson, Deceased, Substituted Defendant in Error. Olvin Tamlin FERGUSON v. Ronald A. FERGUSON, an infant, who sues by his mother and next friend, MyrtleFerguson. |
| Court | Virginia Supreme Court |
Aldine J. Coffman, Jr., Virginia Beach (Coffman & Coffman, Virginia Beach, on brief), for plaintiff in error.
F. Lee Ford, Newport News (R. Gordon Scott, Ford, Avis, Avis & Scott, Newport
News, on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
Ronald A. Ferguson, an infant, instituted an action in the court below against Sandra Sue S. Worley and Olvin Tamlin Ferguson, to recover for personal injuries received in an automobile accident.
At the same time Olvin Lewis Ferguson, father of Ronald A. Ferguson, instituted an action against the same defendants to recover the medical expenses incurred by him in obtaining treatment for these injuries.
The cases were tried jointly and resulted in verdicts of $15,000 in favor of Ronald A. Ferguson against Olvin Tamlin Ferguson, and $1,585.75 in favor of Olvin Lewis Ferguson against Olvin Tamlin Ferguson. The jury found in favor of the defendant Worley. The verdicts were approved by the trial court and final judgments entered thereon. We granted Olvin Tamlin Ferguson writs of error in both cases. He contends that the evidence failed to show as a matter of law that he was guilty of gross negligence which was the proximate cause of the accident, and that the trial court committed error in its rulings on several instructions.
Subsequent to the writs of error being granted, Olvin Lewis Ferguson died, and Myrtle C. Ferguson, his executrix, was substituted as defendant in error in the place and stead of the decedent. For convenience the parties will be referred to by name or according to the positions they occupied in the lower court.
The accident occurred about 7:30 A.M. on the 16th day of April, 1969 in the City of Hampton, at the intersection of Mercury Boulevard and Tallwood Drive. Mercury, a widely traveled highway, runs in an easterly direction from the James River Bridge. It is a dual highway with two lanes of travel in each direction separated by a median grass strip. Running along the south side of, and parallel to Mercury, is a service road. Tallwood runs in a northerly direction and forms a T intersection with the southern edge of Mercury and the service road.
At the time of the accident Mrs. Worley was driving her cream colored Oldsmobile automobile in an easterly direction on the inside traffic lane of Mercury and approaching the Mercury-Tallwood intersection. Her speed was approximately 40 miles per hour. Mrs. Worley testified that in the outside traffic lane, and to her right, also proceeding east, was a black car some 6 or 7 car lengths ahead of her, and that following the black car was a red Torino, also in the outside lane, and some 3 or 4 car lengths in front of her.
At about the same time the defendant, Olvin Tamlin Ferguson, and his 16 year-old brother, Ronald A. Ferguson, were driving in a westerly direction on the service road, and approaching Tallwood at the point where it intersects with Mercury. Defendant was driving his Opel automobile. It was his intention to drive west on the service road to Tallwood, turn right and cross the two east traffic lanes on Mercury, and the median strip and turn left preliminary to proceeding west in one of the west traffic lanes of Mercury.
It was raining at the time and the weather was misty or hazy. The Ferguson brothers testified that when they reached Tallwood and the point where it intersects with Mercury, the defendant brought his automobile to a stop. While in that position defendant said that two cars passed going east on Mercury--' (o)ne passed before I quite got to the intersection, and after I came to a complete stop, one other passed'. He estimated that he stopped approximately 4 feet from the south edge of Mercury. He noticed one other car to his left (east) on Mercury which he said was a dark colored car traveling in the right-hand lane, a considerable distance away. He also noted that a car had either stopped in the median, or was moving slowly therein, between the east and west lanes of Mercury. He assumed it was going to turn either into Tallwood or make a U-turn to go east on Mercury.
Defendant was asked how much time elapsed from the passing of the second car until he moved out on Mercury, and answered: '(w)hen the second of the two cars passed, I glanced back to my left, and this is when I seen the dark car travelling in the right lane headed eastward, and then I looked straight ahead and proceeded out'. On cross-examination he was asked: 'Your gaze as you moved from a stopped position to where you were hit was fixed on that car (the one in the median strip) to see what it was going to do.' He answered, 'Yes'.
The defendant testified that he had proceeded across the outside lane of Mercury and thought that his front end had almost reached the median when the left side of his car was struck by the front of the Worley vehicle. He said that he never saw Mrs. Worley until the instant of collision. His brother Ronald (plaintiff) testified substantially as did the defendant. He did not see the Worley vehicle until his brother got in the middle of the road at which time he cried out 'Tammy, watch out'.
Mrs. Worley testified that when she first saw the Opel automobile it was 'coming onto the road * * * (f)rom Tallwood Drive'. She had not seen the car prior to that time. She believed that she was then at a point on the highway near a Lion's Club sign set in the median strip. She estimated the sign was approximately 100 feet from the intersection. Another witness estimated the distance to be approximately 180 feet.
Sergeant William H. Wade, of the Hampton Police Department, was also proceeding east in the outside lane of Mercury and witnessed the accident from a distance. He noted the Opel car approaching from the right and testified: 'I thought to myself gee is he going to come into the main highway and I think I was slightly distracted by something and the next instant I seen one car flying through the air or twirling around in a circle, which was the smaller of the two cars * * *.' He said the accident occurred almost in the middle of the intersection. He did not think the Opel stopped prior to entering Mercury Boulevard, but was unwilling to so testify. The impact occurred in the inside traffic lane in which Mrs. Worley was traveling.
In view of our disposition of this case, and the possibility that it may be retried, we do not comment further or in greater detail on the evidence. A jury has absolved Mrs. Worley of negligence and found that the defendant, Olvin Tamlin Ferguson, was guilty of gross negligence. This verdict has the approval of the trial judge. We are unable to say that as a matter of law defendant was not guilty of gross negligence in the operation of his car at the time and under the circumstances reflected by the testimony.
Defendant assigns error to the action of the trial court in the granting and refusing of 13 instructions. Among the instructions of which he complains is Instruction No. 3 which reads as follows:
'The Court instructs the jury that the defendant, Olvin Tamlin Ferguson, while driving and operating his automobile with the plaintiff as a guest passenger was under the duty to exercise reasonable care for the safety of the plaintiff, and if you further believe that the defendant, Olvin Tamlin Ferguson, failed to exercise reasonable care and was grossly negligent in failing to do so and that such failure proximately caused or contributed to the injuries of the plaintiff, and if you further believe that the plaintiff was free of any negligence which proximately caused or contributed to his own injuries, then your verdict shall be for the plaintiff and against the defendant, Olvin Tamlin Ferguson.'
Clearly the granting of Instruction No. 3 was error for it told the jury that the defendant...
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