Habers v. Madigan

• Decision Date: 15 January 1973
• Citation: 213 Va. 485,193 S.E.2d 653
• Parties: George Christopher HABERS v. Richard MADIGAN, Administrator of the Estate of Jacqueline Madigan, Deceased,et al.
• Court: Virginia Supreme Court

Page 653

193 S.E.2d 653

213 Va. 485

George Christopher HABERS v.Richard MADIGAN, Administrator of the Estate of Jacqueline Madigan, Deceased,et al.

Supreme Court of Virginia.

Jan. 15, 1973.

J. Randolph Larrick, Winchester (Largent, Anderson & Larrick, Winchester, on brief), for plaintiff in error.

Thomas V. Monahan, Leesburg (Hall, Monahan & Engle, Leesburg, on brief), for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN, and POFF, JJ.

I'ANSON, Justice.

Richard Madigan, administrator of the estate of Jacqueline Madigan, deceased, brought this action against George Christopher Habers, Paul Shafer Howell, and H. C. Gabler, Inc., for the wrongful death of his daughter, Jacqueline.A jury trial resulted in a verdict of $40,000 against all the defendants and judgment was subsequently entered on the verdict.All three defendants petitioned this court for writs of error.We denied the petitions of Howell and H. C. Gabler, Inc., but granted Habers a writ of error to the judgment.

Habers contends (1) that there was no evidence showing that he was grossly negligent; (2) that the trial court erred in admitting certain evidence; and (3) that the judgment against him is void because a guardian Ad litem had not been appointed to represent his interests before the jury returned their verdict.

The evidence shows that at approximately 6:15 p.m. on December 8, 1967, Habers, an infant born on August 27, 1948, was the operator of an automobile traveling north on Interstate 81, a short distance east of the City of Winchester, when his car collided with the rear of a tractor-truck driven in the same direction by defendant Howell, who was at the time the agent and employee of defendantH. C. Gabler, Inc.After striking the tractor-truck, the Habers car traveled approximately 296 feet and overturned in the median strip of the highway.The collision caused the death of Jacqueline Madigan, who was a guest passenger in Habers' car, and seriously injured Habers.

Interstate 81 at the point of the accident is a straight, divided highway, having marked lanes proceeding north and south, and with a slight upgrade to the north.It was a dark night, and the weather was clear and dry.

State trooper F. M. Bauserman appeared on the scene shortly after the accident had occurred and conducted an investigation.He measured the distances the two vehicles traveled from the point of collision, took pictures of the scene, talked to the drivers of the vehicles, and examined the taillight on the tractor-truck.He testified that there were no running lights on the rear of the tractor-truck and that its taillight lens was covered with heavy dirt, except for an area from which the dirt had been scraped.When Howell drove the tractor-truck truck from the scene Bauserman followed in his car, and he said that the 'rear taillight (on the tractor-truck) was very dim.It was just a small red, dim light.'He could see the taillight through the cleared area of the lens from a distance of only two or three car lengths.

Defendant Habers, called as an adverse witness, could not recall any of the events occurring just prior to or at the time of the collision.

Defendant Howell testified that before the accident he had driven the tractor with a trailer attached from Boston, Massachusetts, to the Gabler terminal at Kernstown (two miles from the scene of the accident).He arrived at the terminal at approximately 6 p.m.After detaching the trailer he noticed that the taillight on the tractor was 'extremely dirty.'The lens was cracked and 'it was dirty on both sides.'He used his hand 'to rub the red part of the light so it could be seen.'Shortly thereafter he left the terminal in the tractor-truck, and while driving it north on Interstate 81 in the right-hand lane at a speed of approximately 48 miles an hour, he noticed the Habers car and estimated it was traveling at twice his speed.The Habers car crashed into the rear of the tractor-truck with such force that it pushed the left rear wheel of Howell's vehicle forward 8 to 10 inches and broke the rear spring.As the...