Giannone v. Johnson

• Citation: 204 Va. 493,132 S.E.2d 445
• Decision Date: 11 September 1963
• Docket Number: No. 5597,5597
• Parties: ANTHONY W. GIANNONE v. MOZELLE JUNE JOHNSON, ADM'X, ETC. Record
• Court: Virginia Supreme Court

Page 445

132 S.E.2d 445

204 Va. 493

ANTHONY W. GIANNONE v. MOZELLE JUNE JOHNSON, ADM'X, ETC.

Record No. 5597.

Supreme Court of Appeals of Virginia

September 11, 1963.

E. Waller Dudley, for the plaintiff in error.

Oren R. Lewis, Jr. (Tolbert, Lewis & FitzGerald, on brief), for the defendant in error.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

Mozelle June Johnson, administratrix of the estate of John D. L. Johnson, deceased, the plaintiff, filed a motion for judgment against Anthony W. Giannone, the defendant, seeking to recover damages for the wrongful death of Johnson in an automobile accident.

There have been two trials of this action, which opposite results. At the first trial, Judge Emery N. Hosmer presiding, the issue of Johnson's contributory negligence was submitted to the jury, and the verdict was in favor of the defendant. However, on the motion of the plaintiff, the trial court set this verdict aside and ordered a new trial, on the ground that the court had erred in submitting the question of contributory negligence to the jury.

At the second trial, Judge William D. Medley presiding, the defendant was refused any instructions on the issue of contributory negligence, and the jury returned a verdict in favor of the plaintiff for $17,000.00. The court approved the second verdict and entered final judgment thereon.

The defendant is here on a writ of error. In his assignments of error he alleges that the trial court erred in setting aside the first verdict and in refusing to grant his instructions on contributory negligence at the second trial.

In accordance with established principles, we will first look to the record of the first trial and if we find that the court erred in setting aside the verdict there rendered, that verdict will be reinstated and the proceedings subsequent thereto will be annulled. Eubank v. Hayden, 202 Va. 634, 635, 119 S.E.2d 328, Simmons v. Boyd, 199 Va. 806, 809, 102 S.E.2d 292.

The evidence at the first trial shows that the accident occurred at 6:50 p.m., after nightfall, on March 20, 1961, on Arlington boulevard, U.S. Route 50, in Fairfax county. Arlington boulevard runs east and west, consists of four lanes of travel, each approximately 9 1/2 feet wide, and the east and westbound lanes are divided by a median strip 19 feet 10 inches wide.

At the accident site, Arlington boulevard is straight and nearly level. Rogers drive intersects the boulevard from the north, but does not continue on the opposite side thereof. Rogers drive traffic crosses the median strip by means of a paved opening or cross-over.

The defendant, a Fairfax police officer operating a police cruiser, approached Arlington boulevard on Rogers drive. He stopped before entering the boulevard and then proceeded across the two westbound lanes into the cross-over where he again stopped, turned at a slight angle to the southeast, to permit eastbound traffic to pass before making a left turn.

While the defendant was sitting in his vehicle in the cross-over, a Fairfax county police patrol wagon, being operated by Officer Ellis in an easterly direction on Arlington boulevard, turned left into the cross-over. The wagon stopped to the east of the defendant's vehicle with its front bumper even with the southerly edge of the westbound lanes of the boulevard. The defendant and Officer Ellis engaged in conversation for 'a matter of moments.'

Meanwhile, Johnson, operating a taxi cab, was proceeding in a westerly direction on Arlington boulevard, in the lane next to the median strip. His vehicle collided with the rear of the police cruiser, crossed the median strip and the eastbound lanes and struck a bank on the south side of the boulevard. The force of the impact turned the cruiser so that it came to rest facing in an easterly direction.

Robert L. Bouchard, a witness called by the plaintiff, testified that he and Johnson had driven side by side along Arlington boulevard from a traffic light 'some three blocks' from the scene of the accident; that his speed was 40 miles per hour and that the speed limit was 45 miles per hour; that as he approached Rogers drive he slowed his vehicle to make a right turn and the Johnson vehicle appeared to continue on at its same rate of speed; that he saw the patrol wagon sitting in the cross-over, and as Johnson's taxicab began to pull ahead of him he saw the police cruiser protruding into the highway; that when he (Bouchard) saw the cruiser, Johnson's taxi cab was three car lengths therefrom; that he exclaimed to his wife, 'Good Lord, he cannot see it and he is going to hit it'; that when the impact occurred, he thought Johnson's taxi cab was going to turn over, and that it 'seemed to raise way up 3 or 4 feet.'

Dr. Harold McCann, a witness for the plaintiff whose testimony was introduced by deposition, testified that Johnson had no vision in his right eye except the ability to perceive light.

Johnson died one month after the accident from a heart attack which his doctors attributed to the injuries he received in the accident.

The crucial question is: Did the trial court properly submit to the jury, at the first trial, the issue of Johnson's contributory negligence?

We are of opinion that this question must be answered in the affirmative.

We are not unmindful of the fact that the verdict of the jury at the first trial has been set aside by the trial court, and that it is not, therefore, entitled to the same weight as a jury verdict which has been approved. However, we must not overlook the principle, of equal dignity, that questions of negligence, whether contributory or primary, are ordinarily for the jury to decide. Steele v. Crocker, 191 Va. 873, 880, 62 S.E.2d 850; Barry v. Tyler, 171 Va. 381, 388, 199 S.E. 496; Va. Elec. & Power Co. v. Wright, 170 Va. 442, 446, 196 S.E. 580.

A determination, as a matter of law, that a party is guilty of, or is free from, negligence should be made only where the evidence is such that reasonable men could reach but one conclusion thereon; where fair-minded men, weighing the evidence and drawing all just inferences therefrom, would not differ in their views with relation thereto; where the evidence is without conflict and permits of one, and only one, fair result. Nehi Bottling Co. v. Lambert, 196 Va. 949, 955, 86 S.E.2d 156; Penoso v. D. Pender Grocery Co., 177 Va. 245, 248, 249, 13 S.E.2d 310.

We have examined most, if not all, of our previous decisions in which a plaintiff has struck another vehicle, or some other object, in the highway, and where contributory negligence has been relied upon as a defense. Where the circumstances were similar to those in the case at bar, we found that the issue of contributory negligence was properly submitted to the jury. Allen v. Brooks, 203 Va. 357, 124 S.E.2d 18; Body, Fender and Brake Corp. v. Matter, 172 Va. 26, 200 S.E. 589; Ferguson v. Virginia Tractor Co., 170 Va. 486, 197 S.E. 438; Armstrong v. Rose, 170 Va. 190, 196 S.E. 613; Twyman v. Adkins, 168 Va. 456, 191 S.E. 615; City of Radford v. Calhoun, 165 Va. 24, 181 S.E. 345; Waynick v. Walrond, 155 Va. 400, 154 S.E. 522.

In the case before us, Johnson struck the rear of the police cruiser. It was in the trial court, and is here, the plaintiff's theory that Johnson could not see the cruiser because the headlights of the patrol wagon, shining across his lane of travel between his vehicle and the cruiser, created a 'shield' through and beyond which he could not see.

This theory is based upon Johnson's version of the accident which he gave to his physician, Dr. Swisher, on the night of the accident and upon the testimony of the witness Bouchard. The doctor testified, from his recollection, that Johnson told him:

'. . . He stated that he was driving on the highway and as he approached an intersection he noted a vehicle sitting just off the highway but facing on to it with its lights on. This vehicle did not appear to make any effort to move and consequently the patient...