Gabbard v. Knight

• Decision Date: 02 September 1960
• Docket Number: 5121,Nos. 5120,s. 5120
• Citation: 116 S.E.2d 73,202 Va. 40
• Court: Virginia Supreme Court
• Parties: GLENNA GRACE GABBARD, AN INFANT, WHO SUES BY MARTHA L. GABBARD, HER MOTHER AND NEXT FRIEND v. THOMAS WILDER KNIGHT, JR., AND ASSOCIATES INVESTMENT CORPORATION. ALBERT L. GABBARD v. THOMAS WILDER KNIGHT, JR., AND ASSOCIATES INVESTMENT CORPORATION. Record

Page 73

116 S.E.2d 73

202 Va. 40

GLENNA GRACE GABBARD, AN INFANT, WHO SUES BY MARTHA L. GABBARD, HER MOTHER AND NEXT FRIEND v. THOMAS WILDER KNIGHT, JR., AND ASSOCIATES INVESTMENT CORPORATION.

ALBERT L. GABBARD v. THOMAS WILDER KNIGHT, JR., AND ASSOCIATES INVESTMENT CORPORATION.

Record Nos. 5120, 5121.

Supreme Court of Appeals of Virginia

September 2, 1960.

Robert Friend Boyd and J. Randolph Davis (Davis & Boyd, on brief), for the plaintiffs in error.

John F. Rixey (Rixey & Rixey, on brief), for the defendants in error.

JUDGE: EGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

On July 18, 1958, about 5:00 p.m., Glenna Grace Gabbard, twenty months old, while walking from the north side toward the southern side of Ocean View avenue in the city of Norfolk, was struck and badly injured by an automobile driven eastwardly by Thomas Wilder Knight, Jr., and owned by his employer, Associates Investment Corporation. The little girl, suing by her mother and next friend, filed a motion for judgment against Knight and Associates Investment Corporation to recover damages for her injuries. The father, Albert L. Gabbard, filed a motion for judgment against the same defendants to recover for medical expenses incurred by him and damages for the loss of the child's services. By agreement the two cases were heard together by a jury which found for the defendants in each case. Judgments for the defendants were entered immediately.

On the same day the plaintiffs moved that the verdicts be set aside on the ground that they were 'contrary to the law and evidence.' This motion was overruled and judgments were again entered in accordance with the verdicts. Within twenty-one days of the date of the entry of the judgments and before they had become final, the plaintiffs filed a motion 'to vacate the judgments' theretofore entered, to set aside the verdicts, to enter judgments non obstante veredicto in favor of the plaintiffs, and 'to grant a new trial on the issue of damages only,' or, in the alternative, 'to grant a new trial on all issues, for the reasons that the verdicts of the jury were contrary to the law and the evidence, and was without evidence to support them, and because of error in granting and refusing of instructions, as stated in the exceptions thereto.' This motion was likewise overruled and the plaintiffs 'objected and excepted.' We granted a writ of error in each case. For convenience the parties will be referred to as they appeared in the lower court.

On appeal the plaintiffs claim (1) that the verdicts are contrary to the law and the evidence in that the evidence shows, as a matter of law, that the defendant, Knight, the driver of the car, was guilty of negligence which was a proximate cause of the accident; and (2) that the court erred in granting and refusing certain instructions.

At the outset the defendants argue that we should not consider the sufficiency of the evidence to sustain the verdicts and the rulings of the lower court on the instructions, because, they say, these matters were not brought to the attention of the lower court within the proper time.

There is no merit in this contention. Rule 3:21 provides that, 'All final judgments, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified or vacated for twenty-one (21) days after the date of entry, and no longer.' Hence, at the time of the last motion of the plaintiffs the judgments had not become final and the lower court had full power and authority to inquire into the sufficiency of the evidence to sustain the verdicts and the objections made during the trial to its rulings on the instructions.

The defendants next say that the plaintiffs are 'estopped' to assert the insufficiency of the evidence, because, they say, 'At the conclusion of the defendants' evidence the plaintiffs made no motions to strike the defendants' evidence,' but consented to submitting to the jury the question of the negligence of the defendant, Knight.

This argument is likewise without merit. While a motion to strike is an appropriate way of testing the sufficiency of relevant evidence to sustain an adverse verdict, it is not the only way. It has long been the practice in this jurisdiction to test the sufficiency of such evidence by a motion to set aside the verdict. Indeed, in Southern Railway Co. v. Cooper, 98 Va. 299, 302, 36 S.E. 388 (decided in 1900), this court held that a motion to strike was not a proper way of testing the sufficiency of relevant evidence to sustain a verdict. Since that time the use of the motion to strike has been approved by us and is quite frequently employed. See Anderson v. Clinchfield R. Co., 171 Va. 87, 89, 198 S.E. 478, 479; Dudley v. Guthrie, 192 Va. 1, 3, 63 S.E.2d 737, 738; Burks Pleading and Practice, 4th Ed., § 284, p. 506 ff. But that method has not superseded or supplanted a motion to set aside the verdict as an equally appropriate method of testing the sufficiency of the evidence. This latter method is still sanctioned by statute. Code, § 8-352. See also, Burks Pleading and Practice, 4th Ed., § 325, p. 604 ff.

In Seinsheimer Company v. Greenaway, 159 Va. 528, 533, 166 S.E. 539, we said: 'In a civil case a defendant has the option of making a motion to strike the evidence of the plaintiff from the case, demurring to the evidence, or awaiting the verdict of the jury.' The plaintiff, of course, has the same option. See Rountree v. Rountree, 198 Va. 658, 663, 96 S.E.2d 113, 116; Burks Pleading and Practice, 4th Ed., § 277, p. 494.

We turn, then, to the sufficiency of the evidence and the lower court's rulings on the instructions. At the scene of the accident Ocean View avenue runs east and west, is level, smooth paved, and straight for several blocks. It is 48 feet wide from curb to curb and designed to carry three lanes of travel in each direction, with a double center line painted on the pavement. The accident occurred in daylight when the visibility was good and the pavement dry.

A short time before the accident the little girl had been playing with her sister and a friend on the steps of the Gabbard home, which is located on the northern side of Ocean View avenue between Fifteenth and Sixteenth streets. No one saw her as she made her way for a distance of 25 feet from the steps to the northern side of the street.

Dominick J. Pecora, an eyewitness, was standing on the southern side of the street opposite the Gabbard house. He testified that he 'happened to look up' and saw the child 'just about on the white line' of the street, 'toddling' toward him. About the same time he saw the approaching Knight car, 40 or 50 feet from the child, and 'yelled, Stop!' After this warning, he said, the driver applied his brakes, the car skidded, and its left front struck the child.

According to this witness, while the traffic along the street was 'medium' yet as the car approached the child there were no other vehicles in the immediate vicinity which obstructed the view of the driver. Nor were there, according to his testimony, any vehicles parked on the northern side of the street between the Gabbard house and the point where the child had entered the street. He estimated the speed of the Knight car at from 25 to 30 miles per hour, which was within the permitted speed limit.

An examination of the scene immediately following the accident showed that the car had skidded 35 to 40 feet along the pavement in the eastbound lane next to the center line.

The defendant, Knight, testified that as he approached the scene he was proceeding at a speed of from 25 to 30 miles per hour in the eastbound lane next to the center line. He heard Pecora's warning, and at the same time saw the child which was then about three or four feet on the northern side of the center line, that is, in the westbound lane of travel about 50 or 60 feet away. She was, he said, 'traveling in my direction as a baby walks or waddles.' He immediately applied his brakes and the car skidded. The child, he said, 'kept right on walking. She walked directly in front of me and I hit her.' At the time of the impact the child had crossed the center line and was in his lane of travel.

Knight further testified that he had not seen the child as he approached the scene and until he heard Pecora's warning. He described the traffic in the vicinity as 'heavy,' with cars ahead of and behind him, and others going in the opposite direction. When asked whether any car was parked on the northern side of the street near the Gabbard house, his reply was, 'I believe there was and I think it was a Chevrolet * * * right near the Gabbard house. I am not sure.'

When pressed on cross-examination as to whether after seeing the child he could have avoided striking her by turning his car to the right or left, he replied that he 'probably' or 'possibly' could have done so had he had sufficient time to consider the passing traffic.

Russell H. Jernigan, called as a witness for the defendants, testified that he was driving westwardly along Ocean View avenue and coming to a stop at Fifteenth street, about 100 to 150 feet west of the point of the impact, when he heard Pecora's warning and the screeching of brakes; that he looked back and saw the child rolling in the street, after having been hit. Neither he nor a companion in his car saw the child as they passed the Gabbard house. According to this witness, at the time of the accident traffic along Ocean View avenue was heavy in both...