Graham v. Danko

• Decision Date: 04 March 1963
• Docket Number: 5529,Nos. 5526,s. 5526
• Citation: 204 Va. 135,129 S.E.2d 825
• Court: Virginia Supreme Court
• Parties: LONNIE GRAHAM v. EDWARD F. DANKO. LONNIE GRAHAM v. RONALD CAMPANA, AN INFANT, ETC. Record

Page 825

129 S.E.2d 825

204 Va. 135

LONNIE GRAHAM v. EDWARD F. DANKO.

LONNIE GRAHAM v. RONALD CAMPANA, AN INFANT, ETC.

Record Nos. 5526, 5529.

Supreme Court of Appeals of Virginia

March 4, 1963.

Fred P. Aucamp (Rixey and Rixey, on brief), for the plaintiff in error.

M. T. Bohannon, Jr. and R. L. Bohannon (Herbert and Bohannon, on brief), for the defendants in error.

JUDGE: EGGLESTON

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

Edward F. Danko and Ronald Campana, while passengers in a car driven by Eugene T. Nobriga along U.S. Highway No. 1, a short distance north of Richmond, were injured when that car collided with another driven by Lonnie Graham. Two other cars, driven by Walter Willie Rodgers and an unknown motorist designated in the record and briefs as 'John Doe,' respectively, were likewise involved in the collision. Danko and Campana filed separate motions for judgment against Nobriga, Graham, Rodgers and Doe, seeking to recover damages for injuries sustained in the collision. Each motion alleged that Nobriga was guilty of gross negligence which proximately caused the collision and the plaintiff's injuries. As to the other defendants, it was alleged that each was guilty of negligence which was a proximate cause of the collision and the plaintiff's injuries. A general denial was filed on behalf of each defendant.

There were separate jury trials. In each case the lower court struck the evidence as to Nobriga and entered summary judgment in his favor. There was no exception to this action. The Campana case, tried first, resulted in a verdict and judgment of $6,000 in favor of the plaintiff against Graham and Rodgers and in favor of the defendant Doe. The Danko case resulted in a verdict and judgment of $2,000 in favor of the plaintiff against the defendants Graham, Rodgers and Doe. We granted each of the judgment defendants a writ of error. In this opinion we shall deal only with the questions raised by Graham in his appeals in the two cases.

The main contention of Graham is that the evidence in each case is insufficient, as a matter of law, to sustain a finding that he was guilty of negligence which was a proximate cause of the accident and the plaintiff's injuries. Therefore, he says, a final judgment should be entered in his favor in each case. In the Campana case Graham alternately seeks a new trial because of the rulings of the lower court in excluding certain evidence offered by him and because of its rulings on the instructions.

With respect to Graham's liability, the evidence in the two cases is substantially the same. It is undisputed that the accident occurred on the night of September 3, 1960, about 9:20, on U.S. Highway No. 1, approximately 17 miles north of Richmond. At the time the weather was clear and the road dry. The road is straight, level, unlighted, and marked for four lanes of travel, with the usual double center lines. The permitted speed limit at the scene was 55 miles per hour.

Just before the accident the Nobriga car, in which Danko and Campana were passengers, was traveling north. The cars driven by Graham, Rodgers and Doe were traveling south. As the Doe car was either stopped or moving ahead slowly, it was struck a light blow by the Graham car which then came to a stop in the inside lane. Almost immediately thereafter the Rodgers car ran into the rear of the Graham car, driving the latter car across the highway into the northbound lane where it collided with the Nobriga car. This latter impact caused the Nobriga car to go off of the highway on its right-hand side and resulted in injuries to Danko and Campana.

Graham testified that shortly before reaching the place where the accident occurred he overtook and passed the Rodgers car; that while proceeding along the inside lane he saw, approximately 175 to 200 feet ahead of him, the Doe car which was either stopped or moving slowly; that it had no rear lights; that upon seeing this car ahead he applied his brakes, lightly at first, and when it appeared that he could not stop in time, 'slammed on the brakes' and struck the Doe car a slight blow in its rear and came to a stop. Graham further testified that before he could get started again his car was struck a heavy blow in the rear by the Rodgers car and driven across the highway into the lane of...