Hamilton v. Glemming
| Citation | 46 S.E.2d 438,187 Va. 309 |
| Court | Supreme Court of Virginia |
| Decision Date | 01 March 1948 |
| Parties | HAMILTON et al. v. GLEMMING. |
Error to Circuit Court, Norfolk County; Edward L. Oast, Judge.
Action by Hazel K. Glemming, administratrix of Vernon Lee Glemming, Jr., a minor, against W. H. Hamilton and W. H. Darden, for death of plaintiff's decedent when killed by motor truck owned by W. H. Darden and operated by his agent, W. H. Hamilton. To review an adverse judgment, defendants bring error.
Reversed and remanded.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.
Leigh D. Williams, and Lawson L. Worrell, both of Norfolk, for plaintiffs in error.
V. C. Randall, of Norfolk, for defendant in error.
Vernon Lee Glemming, Jr., a child three years and ten months old, was struck and killed by a motor truck owned by W. H. Darden, and operated by his agent, W. H. Hamilton.
The personal representative of the decedent has recovered a verdict and a judgment against the owner and the operator of the truck, which are before us for review.
For convenience, we shall refer to the parties as they appeared in the court below.
The sole contention of the defendants is that the court erred in giving an instruction to the jury relating to the effect of the failure of the driver of a motor vehicle to drive upon the right half of a highway.
In view of the conclusion which we have reached, it is not necessary to set out theevidence in detail. It will be sufficient to summarize only the evidence upon which that instruction is claimed to be based.
The accident occurred about noon on December 14, 1946, on McKinley avenue, a road in a suburban settlement in Norfolk county. The deceased infant lived with his parents at their home on the south side of McKinley avenue, approximately 80 yards east of its intersection with Second street, West of the Glemming home is the dwelling of Mrs. Dorothy Pierce. They are separated only by a driveway between them. Both houses are situated approximately 25 feet from the south edge of the avenue. McKinley avenue has a hard surface 15 feet wide. On its north side is a grass shoulder 34 inches wide and next a ditch approximately 28 inches wide and 14 inches deep.
W. H. Hamilton was the driver of a milk motor truck owned by W. H. Darden. The truck was about 12 or 13 feet long, and had a closed body, equipped with four doors. It had no seat for the driver, who stood up to drive. On the day in question, Hamilton was accompanied by his six-year old son, who stood up on the right-hand side next to the windshield. Driving north on Second street, Hamilton made a right-hand turn eastwardly into McKinley avenue. When he made the turn, there were four children, all under seven years of age, standing in the front yard of the Pierce home. He did not observe these children until he was 60 feet from them, at which time he thought they were standing on the grass 3 feet away from the road. He said he was then "driving pretty well in the middle of the road" at the rate of 10 miles per hour; that when he got within 10 feet of the children, one of them ran out in front of his truck; that he turned the front of the truck sharply to the left away from the child; and that was the last thing he knew that happened. He thought the front end of the truck missed the child. He did not immediately apply his brakes and the truck continued to the left across the road, and came to a stop astride the ditch on the north side.
Vernon Lee Glemming, Jr., was found dead lying on the north side of the road, -- that is, to the left of the direction in which the truck was going. His head was on the grass just off the road, his body on the road, with his feet pointed towards its center. The body was 12 feet from the point where the truck first began to turn to the left. The truck stopped 35 feet beyond the body. The child died from a fractured skull.
The distance from the corner where Hamilton turned in entering McKinley avenue to the point where the children were standing was 75 yards, and his view of them was unobstructed. There were no dents or marks of any character to indicate what portion of the truck struck the child. Hamilton did not know where it hit the child, or the point on the road where the child was hit. He could not account for the body of the child being found on. his left-hand side of the road.
As to the weight and effect of the testimony, the physical facts, and the proper inferences therefrom, we express no opinion.
The court granted four instructions for the plaintiff and four for the defendant. We need consider only two of them, P-8 granted to the plaintiff and D-9 granted to the defendants.
P-8 reads as follows:
D-9 is in the following language:
"The Court instructs the jury that if a person, without negligence on his part, is suddenly confronted by an emergency, he is not required to make a wise choice, and if you believe from the evidence that Mr. Hamilton, while proceeding along McKinley Street, was suddenly confronted by an emergency to either turn to his left in, order to avoid striking the child, or to stop, and that he cut to his left in an effort to avoid the accident, and that his action in so doing was such as a person of ordinary prudence might have done under like circumstances, then he was not guilty of negligence, even though he failed to avoid the collision, and even though you may believe from the evidence that he could have avoided the accident, had he attempted to stop, and your verdict should be for the defendants."
The defendants objected to instruction P-8 on the following three grounds:
The plaintiff contends the physical facts show that the child, when struck, was to the left of the center of the road, and that he would have escaped injury if the truck had been driven on its right half of the highway. She further contends that regardless of the position of the child, the operator of the truck saw or should have seen him, either on the road, entering the road, or playing in dangerous proximity thereto, in time to have avoided the accident, if he had exercised due and ordinary care.
The defendants contend that the evidence shows that the child suddenly ran on the road in front of the truck; that its driver, confronted with an emergency, acted as a person of ordinary prudence might have done under the circumstances and that the accident was excusable. They further contend that the driving of the truck in the middle of the road bore no causal connection to the accident, because the child would have been in greater danger had the truck been driven on its right half of the highway.
It is elementary that instructions should be founded on the evidence. They should be clear, complete, and without conflict. It is their object to define for the jury, and to direct their attention to, the legal principles which apply to and govern the facts which the evidence tends to prove.
Virginia Code 1942 (Michie), section 2154(112) reads as follows:
"Except as otherwise provided in section 2154(114) upon all highways of sufficient width the driver of a vehicle shall drive the same upon the right half of the highway, unless it is impracticable to travel on such side of the highway and except when overtaking and passing another vehicle subject to the limitation applicable in overtaking and passing set forth in sections 2154(116) and 2154(118)."
It is obvious, we think, that this section was enacted to give protection to persons and property on the left-hand side of the highway.
In considering an analogous provision of the Virginia statute, prescribing rules to be observed by the driver of a vehicle in making either a left or right turn at a road intersection, in Morris v. Dame's Ex'r, 161 Va. 545, 566, 171 S.E. 662, 669, we said:
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