Ferguson v. Va. Tractor Co. Inc

• Decision Date: 08 June 1938
• Citation: Ferguson v. Va. Tractor Co. Inc, 170 Va. 486, 197 S.E. 438 (1938)
• Parties: FERGUSON. v. VIRGINIA TRACTOR CO., Inc.
• Court: Virginia Supreme Court

197 S.E. 438

FERGUSON.

v.VIRGINIA TRACTOR CO., Inc.

Supreme Court of Appeals of Virginia.

June 8, 1938.

Error to Circuit Court of City of Richmond; Julien Gunn, Judge.

Action by James Meade Ferguson against the Virginia Tractor Company, Incorporated, for damages for injuries sustained when plaintiff's automobile collided with a truck belonging to the defendant.From a judgment for the defendant, the plaintiff brings error.

Reversed and judgment entered for the plaintiff.

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

Gordon B. Ambler, of Richmond, for plaintiff in error.

Thomas O. Moss, of Richmond, for defendant in error.

BROWNING, Justice.

James Meade Ferguson, plaintiff in error here, and the plaintiff in the trial court, sued the Virginia Tractor Company, Inc., defendant in error in this proceeding, and the defendant in the trial court, for damages for injuries which he sustained by reason of the collision of the automobile which he was driving with a large truck, which belonged to the defendant.

On January 1, 1935, about 9:30 o'clock at night, the plaintiff was driving a V-8 Ford automobile along what is known as the Midlothian Turnpike, in Chesterfield county, Virginia, toward Richmond.When he was within about one mile of the city he met another automobile going from Richmond with very bright headlights.He reduced his speed from about 35 miles an hour to 25 or 30 miles to pass the car he was meeting in safety.He dimmed his lights and veered to the right, and from that moment he knew nothing more until he regained consciousness at the hospital, to which he was taken.

His car crashed into the defendant's truck, which was parked on the right of the highway also in the direction of Richmond.The truck was without lights, which were functioning at the time, either at its front or at its rear or at any other portion of it.The truck was painted a dark green or blue.It was in a setting, on the side of which was a fringe of green pines.From the rear end of the truck two square pieces of timber, 4 by 12, projected from four to six feet.There were no lights on the projecting pieces of timber.There was a small piece of cloth on the end of one of the pieces, which the driver called a red flag.The impact thrust these beams through the windshield of the plaintiff's car, over the front seat and on to the back of the rear seat, tearing the upholstery.The" plaintiff's car was telescoped under the rear of the truck.A young lady, who was seated beside the plaintiff, was killed outright and he was seriously and permanently injured.For 68 days he was confined in the Memorial Hospital, where he incurred medical bills and expenses aggregating a very large sum.

The defendant denied negligence and pleaded contributory negligence upon the part of the plaintiff.The court overruled the defendant's motion to strike the evidence at the end of the plaintiff's testimony and, upon all of the testimony for the plaintiff and the defendant and the instructions of the court and a view of the scene of the accident by the jury, a verdict was rendered in favor of the plaintiff for $5,000.After receiving the matter under advisement, the court sustained the motion of the defendant and set aside the verdict and entered final judgment for the defendant upon the ground that the evidence disclosed that the plaintiff was guilty of contributory negligence as a matter of law.Our concern then is limited to that inquiry.

The negligence alleged against the plaintiff was that under all the facts and circumstances he should have seen the parked truck and should have avoided striking it.The testimony submitted by the defense showed that the truck was parked on the highway, on a slight up-grade without lights, on a dark night, without moonlight, with two lateral roads within a few feet of the truck, into which it could have been driven, that there was a wide open field adjacent to the turnpike, though it was wet, and that there was a firm shoulder, four feet wide, between the hard surface and the slight depression, which was called a ditch, upon which the truck could have been parked certainly to the extent of its width.

Notwithstanding this set of proven circumstances, the defendant vigorously urges that this court should say, as did the trial court, that the plaintiff, in his failure to see the truck, and driving into it, was guilty, as a matter of law, of contributory negligence which should bar his recovery.

Where the evidence is in dispute, that is, conflicting, the question of contributory negligence is for the determination of the jury.This has been so often enunciated by this court that it has become axiomatic and needs" no citation for its reiteration.

The plaintiff was blinded by the glare of the bright lights of the car which was approaching and in close proximity to him.He at once did the two things which were highly consistent with care and prudence and due regard for the safety of his companion, himself and the occupants of the other car.He reduced his speed in an appreciable extent from the entirely lawful rate of 35 miles an hour and dimmed his lights.Such conduct is hardly compatible with the notion that one would go headlong into a static object, if he saw it, or that one would fail to keep, and exercise, the lookout required by law to avoid a disastrous catastrophe.The plaintiff did not see the truck.Did his failure in that respect convict him of negligence as a matter of law?

Mr. J. A. Townsend, a witness for the plaintiff, who was an assistant bookkeeper for Pollard & Bagby, of Richmond, a responsible firm of realtors, in driving in his automobile to Richmond within an hour before the accident, passed the parked truck.He did not see it until he was dangerously near it, in fact within 30 feet.He was driving from 25 to 30 miles an hour.He said that the truck was without lights and he described it as looking "like a great big dirty sheet" in front of him.He blew his horn and some man in front of the truck, he couldn't tell in the darkness whether he was colored or white, flashed a light or struck a match and he went by.

J. E. MacFarlane, a witness for the plaintiff, who was employed at the Etchison Hat Company, of Richmond, was driving behind the plaintiff for about seven miles on the night of the accident.He said that just before the plaintiff hit the truck he met a car with real bright lights on it and that he, the witness, could not see the plaintiff after he hit the truck until he was within 30 or 40 feet of him.He said that he did not see the truck at all before the accident and that after he passed the car with the bright lights, coming from Richmond, that he had to apply his brakes very firmly to avoid running into the plaintiff's car, and that he would not have succeeded in doing this except for the rear light on his (plaintiff's) car.

H. A. Jennings, another witness for the plaintiff, and a mechanic employed by the Virginia Electric & Power Company, testified that the driver of the truck, a colored man named Taylor, told him that he had had trouble with the lights on the truck for some distance before it was parked.

J. D. Burley, a witness for the plaintiff, after testifying that the truck was without lights, was asked:

"Q.Was the truck parked on the highway or off the highway?

"A.It was more on the highway than it was off the highway.It was enough room there to park a five ton truck off the highway.Besides, it didn't have to have gone but just a little bit further and could have parked where I parked my car and been completely off the highway entirely."

Burley was an employee of the city of Richmond and was driving to Richmond and arrived at the scene of the accident about 10 o'clock at night.He further testified that the truck was out in the highway so far he had to go around it to pass and that two cars could not go abreast of the truck as it was "sitting there".He also testified that the truck was parked between two knolls; that the turnpike, from the scene of the accident west, was not perfectly level; that its topography was of varying grades.The testimony of the witness, Jennings, corroborated that of Burley with respect to the road.Jennings also said that the night was not clear but "plenty dark".

Another witness for the plaintiff, L. G. Woodall, who was a furniture salesman, testified that he was at Mr....