Ferguson v. Virginia Tractor Co.
| Decision Date | 08 June 1938 |
| Citation | 170 Va. 486 |
| Parties | JAMES MEADE FERGUSON v. VIRGINIA TRACTOR COMPANY, INC. |
| Court | Virginia Supreme Court |
Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. NEGLIGENCE — Contributory Negligence — Question for Jury Where Evidence Conflicting. — Where the evidence is conflicting, the question of contributory negligence is for the determination of the jury.
2. JUDICIAL NOTICE — Matters of Common Knowledge — Time Required for Eyes to Resume Normality after Shock of Glaring Light. — It is a matter of common knowledge that it requires an appreciable interval of time before the eyes resume normality after the retina has been shocked by a glaring light.
3. AUTOMOBILES — Collision with Parked Truck — Contributory Negligence — Sufficiency of Evidence to Sustain Verdict — Case at Bar. — In the instant case, an action to recover for injuries sustained when plaintiff's automobile collided with defendant's truck, the evidence showed that the truck was parked on the highway, on a slight upgrade, without lights, on a dark night and with nearby roads and fields in which the truck could have been left. Just prior to the collision, plaintiff, being blinded by the lights of an approaching car, reduced his speed to an appreciable extent from the rate of thirty-five miles an hour at which he was traveling, and dimmed his lights. Witnesses testified that shortly before and after the accident they had difficulty in avoiding the parked truck, although their lights were not dimmed. Defendant contended that plaintiff, in his failure to see the truck, and driving into it, was guilty of contributory negligence as a matter of law.
Held: That the evidence justified the verdict of the jury that there was no contributory negligence on plaintiff's part.
4. AUTOMOBILES — Duty of Driver — No Duty to Stop When Temporarily Blinded by Approaching Lights. — Where the driver of an automobile is temporarily blinded by the glare of approaching lights, it is not legally incumbent upon him to stop his car.
5. NEGLIGENCE — Contributory Negligence — Presumptions and Burden of Proof. — There is a presumption of ordinary care in favor of plaintiff, and where defendant relies upon plaintiff's contributory negligence the burden of proof rests upon defendant to show such negligence, unless it is disclosed by plaintiff's evidence or may be fairly inferred from all the circumstances.
6. AUTOMOBILES — Collision with Parked Truck — Evidence — Tests Made under Conditions Different from Those Existing at Time of Accident — Case at Bar. — In the instant case, an action to recover for injuries sustained when plaintiff's automobile collided with a truck parked on the highway without lights, defendant undertook to substantiate its contention that plaintiff was guilty of contributory negligence in not seeing the parked truck by making a number of tests. Just prior to the collision plaintiff had been blinded by the glare of approaching lights and in consequence had dimmed his own lights. The persons making the tests did not dim their lights, nor pass an oncoming car which blinded them, and they were on the lookout for an object which they knew was there.
Held: That the conditions surrounding the tests were so different from those which operated at the actual accident as to make them quite valueless as proof of the contention that plaintiff was guilty of contributory negligence in not seeing the parked truck.
Error to a judgment of the Circuit Court of the city of Richmond. Hon. Julien Gunn, judge presiding. Judgment for defendant. Plaintiff assigns error.
The opinion states the case.
Gordon B. Ambler, for the plaintiff in error.
Thomas O. Moss, for the defendant in error.
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 thirty-five miles an hour to twenty-five or thirty 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, four by twelve, 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 sixty-eight 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 thirty-five 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 thirty feet. He was driving from twenty-five to thirty 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 thirty or forty 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...
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