Harris v. Howerton

• Decision Date: 13 January 1938
• Citation: 169 Va. 647
• Court: Virginia Supreme Court
• Parties: LEE ROY HARRIS v. J. H. HOWERTON AND J. E. HOWERTON.

Page 647

169 Va. 647

LEE ROY HARRIS v. J. H. HOWERTON AND J. E. HOWERTON.

Supreme Court of Virginia, Richmond.

January 13, 1938.

Present, Campbell, C.J., and Holt, Gregory, Browning, Eggleston and Spratley, JJ.

1. AUTOMOBILES — Collision with Parked Truck — Attention to Oncoming Car No Excuse for Failure to Keep Lookout — Case at Bar. — In the instant case, an action to recover for injuries arising out of a collision of an automobile with a parked truck, plaintiff's testimony disclosed that he approached at night a long, straight stretch of highway with which he was familiar; that the night was clear and the highway well lighted; that the truck was large and parked on the highway beside the right-hand curb, but without lights; and that plaintiff was "to a certain extent" blinded by the lights of an oncoming automobile, which he met just prior to the collision.

Held: That while it might be true that the reason plaintiff did not see the truck was that he was paying close attention to the oncoming car, this was not sufficient excuse for failure to keep a lookout in the direction ahead.

2. AUTOMOBILES — Collision with Parked Truck — Failure to Exercise Due Care — Plaintiff's Own Testimony as to His Lights — Case at Bar. — The instant case was an action to recover for injuries arising out of a collision of an automobile with a parked truck. Plaintiff's testimony disclosed that he approached at night a long, straight stretch of highway with which he was familiar; that the night was clear and the highway well lighted; that the truck was large and parked on the highway beside the right-hand curb, but without lights. Plaintiff first testified that the lights on his automobile were in good working condition and complied with the legal requirements, but on cross-examination he made confusing and contradictory statements with reference to the sufficiency of his lights, and stated that they were not sufficient to distinguish an object in the road or a person the regulation distance, even when he was driving along and not meeting a car, and that when dimmed they focused on the ground about thirty feet in front of the car.

Held: That according to either of plaintiff's statements as to his lights, he was not exercising the care required of him. If the first statement were accepted, plaintiff was negligent in failing to keep a proper lookout, and if the second were accepted, he was negligent in failing to have proper lights.

3. AUTOMOBILES — Collision with Parked Truck — Failure to Exercise Due Care — Plaintiff's Own Testimony as to Place of Meeting Approaching Car — Case at Bar. — The instant case was an action to recover for injuries arising out of a collision of an automobile with a parked truck. Plaintiff's testimony disclosed that he approached at night a long, straight stretch of highway with which he was familiar; that the night was clear and the highway well lighted; that the truck was large and parked on the highway beside the right-hand curb, but without lights; and that plaintiff was "to a certain extent" blinded by the lights of an oncoming automobile. According to one portion of plaintiff's testimony, the oncoming car, by a mathematical calculation, would have passed him more than one hundred feet before he reached the truck. According to another portion of his testimony, his vision was first interfered with by the lights of the approaching car one hundred feet from the point of collision, so that in the preceding one hundred feet the lights on his car should have disclosed the parked truck.

Held: That, accepting either of plaintiff's statements about the location of his car when he was first affected by the lights of the approaching car, he was not exercising the care required of him.

4. EVIDENCE — Sufficiency — Plaintiff's Case as Made by Him Cannot Be Strengthened. — The case of the plaintiff cannot be made stronger by the court than he has made it himself.

5. AUTOMOBILES — Collision — Failure of Plaintiff to Give Clear and Satisfactory Account of or Reason for Collision. — The failure of the driver of an automobile to give any clear and satisfactory account of, or reason for, a collision, will not justify a judgment in his favor based on speculation or sympathy.

6. AUTOMOBILES — Collision with Parked Truck — Supreme Court of Appeals Not Required to Believe that Which Is Demonstrably Untrue — Case at Bar. — The instant case was an action to recover for injuries sustained when plaintiff's automobile collided at night with a parked truck. Plaintiff's testimony disclosed that he approached at night a long, straight stretch of highway with which he was familiar; that the night was clear and the highway well lighted; that the truck was large and parked on the highway beside the right-hand curb, but without lights. Plaintiff contended that the reason he did not see the truck was that he was "to a certain extent" blinded by the lights of an oncoming automobile, but under the circumstances shown to have been existing, both from plaintiff's own testimony and the uncontradicted evidence of others, it was incredible that plaintiff could have been vigilant and keeping a proper lookout, and have failed to see the truck.

Held: That the Supreme Court of Appeals was not required to believe that which the physical facts demonstrated to be untrue.

7. APPEAL AND ERROR — Weight of Verdict Disapproved by Trial Judge. — A verdict disapproved by the trial judge is not entitled to the same weight as that ordinarily given the verdict of a jury.

8. NEW TRIALS — Setting Aside Verdict — When Proper. — The trial judge should not set aside a verdict merely because he would, as a juror, have found a different one, but he should exercise the supervisory power conferred by law to consider whether, from the whole evidence in the case, the judgment is contrary to the law and the evidence, or is plainly wrong.

9. NEW TRIALS — Setting Aside Verdict — Where Plaintiff Fails to Show Right to Recover — Where Contributory Negligence as Matter of Law Is Disclosed. — Where, in a tort action, the plaintiff fails to show his right to recover, or his contributory negligence as a matter of law is disclosed, it is the duty of the trial court to exercise its power and authority to set aside a verdict for the plaintiff.

10. NEGLIGENCE — Violation of Ordinance or Statute — Violation Must Be Proximate Cause of Injury. — The violation of an ordinance or statute does not make the violator guilty of negligence which will support a recovery for damages unless such violation was the proximate cause of the injury.

11. NEGLIGENCE — Contributory Negligence — When a Question of Fact and When a Question of Law. — The question of contributory negligence is a question for the jury when the facts are in dispute; but if the facts upon which that question hinges are so certain and uncontroverted that fair-minded men ought not to differ in their conclusions therefrom, then it is a question for the court.

12. AUTOMOBILES — Collision with Parked Truck — Proximate Cause — Failure to Have Rear Light on Truck — Case at Bar. — In the instant case, an action to recover for injuries sustained when plaintiff's automobile collided at night with a parked truck, plaintiff contended that the sole cause of the collision was the absence of a lighted rear light on the truck. Save by the negative testimony of plaintiff that he did not see the truck, the evidence was uncontradicted that the highway was sufficiently lighted to show its presence, and that with proper lights on plaintiff's car the driver could have discerned the truck's presence if he had been keeping a proper lookout, regardless of whether a rear light was displayed. Plaintiff testified that the lights of an oncoming automobile blinded him "to a certain extent," but if a partial, temporary blindness was caused by the headlights of an approaching car, the same blindness would have blotted out a rear red light on the truck.

Held: That the failure to have the required rear light was not the sole proximate cause of the collision.

13. AUTOMOBILES — Collision with Parked Truck — Proximate Cause — Failure of Automobile Driver to Keep Lookout — Case at Bar. — In the instant case, an action to recover for injuries sustained when plaintiff's automobile collided at night with a parked truck, plaintiff contended that the sole cause of the collision was the absence of a lighted rear light on the truck. Save by the negative testimony of plaintiff that he did not see the truck, the evidence was uncontradicted that the highway was sufficiently lighted to show its presence, and that with proper lights on plaintiff's car the driver could have discerned the truck's presence if he had been keeping a proper lookout, regardless of whether a rear light was displayed. Plaintiff testified that the lights of an oncoming automobile blinded him "to a certain extent," but if a partial, temporary blindness was caused by the headlights of an approaching car, the same blindness would have blotted out a rear red light on the truck.

Held: That the continuing failure of the plaintiff to keep a lookout and to observe the parked truck was the proximate cause of the collision.

14. AUTOMOBILES — Collision with Parked Truck — Proximate Cause — Concurring Negligence of Automobile Driver and Truck Owner — Case at Bar. — In the instant case, an action to recover for injuries sustained when plaintiff's automobile collided at night with a parked truck, plaintiff contended that the sole cause of the collision was the absence of a lighted rear light on the truck. Save by the negative testimony of plaintiff that he did not see the truck, the evidence was uncontradicted that the highway was sufficiently lighted to show its presence, and that with proper lights on plaintiff's car the driver could have discerned the truck's presence if he had been keeping a proper lookout, regardless of whether a rear light was displayed. Plaintiff testified that the...