Hall v. Miles

• Decision Date: 16 January 1956
• Docket Number: No. 4454,4454
• Citation: Hall v. Miles, 90 S.E.2d 815, 197 Va. 644 (1956)
• Parties: POLLY ANN MAYNARD HALL, ADMINISTRATRIX, ETC. v. MILDRED MILES. Record
• Court: Virginia Supreme Court

Page 815

90 S.E.2d 815

197 Va. 644

POLLY ANN MAYNARD HALL, ADMINISTRATRIX, ETC. v.MILDRED MILES.

Record No. 4454.

Supreme Court of Appeals of Virginia

January 16, 1956.

Louis B. Fine, Howard I. Legum and John J. Justice, for the plaintiff in error.

Rixey & Rixey, for the defendant in error.

JUDGE: SPRATLEY

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

This is an action for the death by wrongful act of Rebecca Anne Hall, an infant seventeen months of age, who died from injuries alleged to have been sustained by reason of the negligent operation of an automobile by the defendant, Mildred Miles.The jury returned a verdict for the defendant, and the trial court entered judgment accordingly.We awarded plaintiff this writ of error.

The single issue presented for our determination is whether the trial court erred in the granting and refusing of instructions to the jury.

Ten instructions were given, six at the request of plaintiff, and four at the request of defendant.Five more asked for by plaintiff were refused.Plaintiff excepted to the refusal of those five and to the granting of three of those given for the defendant.

A correct determination of the question whether the jury was fully and properly instructed depends upon a consideration of all the instructions granted, as well as those refused, germane to the issue involved.Notwithstanding this, and in violation of Rule of Court 5:1 § 6(a) and (d), plaintiff failed to designate for printing the judgment appealed from and the six instructions granted at her request.Consequently, we have had to examine the original record to find the instructions which were given.Rule of Court 5:1 § 6(f).¹

We cannot too strongly urge upon counsel the necessity of complying with the Rules of Court.Everything germane to an error assigned should be designated and printed, so that the printed record may contain everything essential to determine whether or not error has been committed.Each Justice of this Court has a copy of the printed record; but not of the original record.

While there is no assignment of error as to the sufficiency of the evidence to support the verdict of the jury, it is necessary for us to state the facts in order to determine the contention of the plaintiff with respect to the instructions.The facts stated in the light most favorable to the defendant, as they appear from the testimony and exhibits, may be summarized as follows:

Mrs. Mildred Miles lived with her husband and children at 120 North Ingleside Drive, a residential sub-division in Norfolk County.The administratrix lived with her husband and children next door at 122 North Ingleside Drive to the west of 120.

On the west side of the Miles' lot there is a private driveway from the street, North Ingleside Drive, to the door of defendant's garage.The driveway, covered with gravel, is about 8.4 feet in width and extends from the garage door approximately 30 feet to the property line of defendant fronting on the street.The street is paved only in its central portion.A plat of the immediate premises shows a ditch, wholly within the platted street, running along the edge of and parallel with the hard surfaced portion of the street.The ditch separates defendant's property line from the paved portion of the street, and directly in front of defendant's driveway it is filled up with sand to allow passage of a car from the driveway.Under the sand, at the edge of the paved portion of the street, a concrete pipe has been laid to carry the drainage under the surface.Both ditch and pipe lie outside the property line of defendant's lot, and the distance between the pipe and her property line is shown as 9.6 feet.There is no sidewalk in front of defendant's lot.

On September 17, 1953, a clear and dry day, defendant parked her stationwagon in her driveway about 12:30 p.m., and went into the house to take a nap.Linda Miles, her daughter, came home from school about 3:05 p.m., saw the child, Rebecca, in front of the Miles' home, spoke to her, and patted her on the head.The child then went towards the rear of the Hall home, next door.Linda entered her home through the front door; but did not tell her mother that she had seen the Hall child until later that evening after she had heard of the death of Rebecca.

About 3:15 p.m., Mrs. Miles, with Linda following her, came out of the front door of their home.Linda forgot to close the door and Mrs. Miles turned back and shut the door.Linda got into the stationwagon through the right door, the door next to her, and Mrs. Miles closed it.Mrs. Miles then walked around the rear of her stationwagon, entered on the left side, started the motor, and with her head out of the window, looking to the rear, slowly backed her car out of her driveway on to the hard surface portion of the street, stopped, and then went forward to the City of Norfolk.Neither Linda nor Mrs. Miles saw the Hall child or any sign of her.Mrs. Miles said that when she walked around the rear of her car, she looked to see if there was anything in the way of the car, and if there had been anything there she would have seen it; and added that she had no reason to think that the child might be out in front of the house.Neither she nor Linda felt any bump of the car indicating that they had run over something.She said she did not stop the car before entering the street, nor did she blow her horn because she'had no reason' to do so.

After transacting some business in the City of Norfolk, Mrs. Miles returned to her home about 5:00 p.m.Upon her return, she was informed of the fact that the Hall child had been picked up in the street where she had been apparently run over by someone.Linda then told her mother of seeing the child earlier that afternoon.

Three police officers assigned to investigate the accident promptly went to the Miles' home and questioned Mrs. Miles.Mrs. Miles informed them that at the time she left her home that afternoon she did not see a child anywhere in her yard or next door.They found no marks of blood on the stationwagon, nor anything else to indicate it had struck the child.They did observe that tire marks found on the child's arms and hands were identical with those made by the tires of the car, as well as with tire marks made by all tires of that particular brand.

Plaintiff, the child's mother, said that when she heard the motor of the stationwagon start on the afternoon of September 17th, 1953, she ran to the back of her home to look for her child, where she had last seen her.Not finding her there she ran to the front of her house and found the child lying face down in the sand in the street in line with the driveway to defendant's garage.Red marks were on the child's arm but she was not bleeding externally.The child was taken to a hospital, and the physicians found tire marks on the child's left and right forearms and on her clothing.They were of the opinion that her death resulted from an internal hemorrhage, which could have been caused by the pressure of an automobile wheel upon the child's abdomen.

Leroy Hall, Jr., brother of the deceased infant, said, under cross-examination, that he saw the stationwagon in the driveway before it was backed to the street and that its rear end was approximately 10 feet from the pipe next to the paved portion of the street.Since the pipe was 9.6 feet from the property line this placed the car about four-tenths of a foot from the street line.Upon being recalled to the stand by plaintiff, Leroy made an 'estimate' that the front of the car was 'maybe a yard' from the garage door.

Leroy Hall, Sr., the child's father, estimated the length of defendant's stationwagon as 16 or 17 feet.Mrs. Miles said she did not know how far the back of her car was from the street, but thought its front may have been from two and one-half to three and one-half feet from her garage door.

There were no eye-witnesses to the unfortunate accident which resulted in the death of the child.The questions whether the child was run over by defendant's car and, if so, whether the negligence of the defendant proximately caused the accident, were for the jury, and the jury has found for the defendant.Under the circumstances, the verdict is conclusive in the absence of some reversible error in the instructions.

The principal argument of the plaintiff with respect to the instructions refused is that the defendant was under the duty to bring her car to a complete stop immediately before entering upon the street, and that her failure to do so constituted negligence as a matter of law.She next contends that the trial court erred in granting defendant's instruction 2-D because it was a finding instruction limiting defendant only to the duty of keeping a proper lookout.

The following instructions were granted at the request of the plaintiff:

Instruction P-1 told the jury that Rebecca Hall, being under the age of seven years, was not...