Hickerson v. Burner, Record No. 3147.

• Decision Date: 03 March 1947
• Docket Number: Record No. 3147.
• Parties: LAWRENCE HICKERSON, AN INFANT, WHO SUES BY HIS NEXT FRIEND, O. M. WEAKLEY v. MILDRED F. BURNER.
• Court: Virginia Supreme Court

Page 66

186 Va. 66

LAWRENCE HICKERSON, AN INFANT, WHO SUES BY HIS NEXT FRIEND, O. M. WEAKLEY v. MILDRED F. BURNER.

Record No. 3147.

Supreme Court of Virginia, Richmond.

March 3, 1947.

Present, Holt, C.J., and Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ.

1. VERDICT — Effect — Conclusiveness. - Where there are irreconcilable conflicts in the evidence and the jury's verdict has resolved in favor of the defendant, its finding is binding on the Supreme Court of Appeals.

2. INSTRUCTIONS — Necessity for Objection — Rule 22 of the Supreme Court of Appeals — Case at Bar. — In the instant case, an action for injuries received by plaintiff in a collision between a motorcycle and an automobile, the brief of plaintiff characterized certain instructions as fatally defective in that they were finding instructions based upon a partial and inadequate view of the evidence, but no objections were made to the instructions in the lower court.

Held: That under Rule 22 of the Supreme Court of Appeals, the instructions could not be relied on before the Supreme Court of Appeals.

3. INSTRUCTIONS — Objection — Reasonable Certainty — Rule 22 of the Supreme Court of Appeals — Case at Bar. — In the instant case, an action for injuries received by plaintiff in a collision between a motorcycle and an automobile, the plaintiff objected to an instruction on the ground that it did not go "far enough as to the question of liability and to the question here as to whether or not she could have avoided this accident if she had been looking."

Held: That whatever the language of plaintiff's brief might mean, it was not a statement "with reasonable certainty," required by Rule 22 of the Supreme Court of Appeals, of the objection made before the Supreme Court of Appeals.

4. VERDICT — Evidence of Juror to Impeach — Unauthorized View by Jurymen. — While the conduct of a juror in inspecting the scene of an automobile collision without the knowledge or permission of the trial court is not ground for a new trial unless it appears that the verdict was affected thereby, only slight evidence of influence or prejudice as a result of such misconduct of a juror should be required to warrant the granting of a new trial.

5. VERDICT — Evidence of Juror to Impeach — Unauthorized View by Jurymen — Case at Bar. — In the instant case, an action for injuries received by plaintiff in a collision between a motorcycle and an automobile, it was assigned as error that the trial court should have set aside the verdict and granted a new trial because of the misconduct of a juror. While a motion for new trial was pending, the attention of the court was directed to the fact that a juror had, during the taking of the evidence, visited the scene of the accident, viewed the surrounding physical situation, and made a report thereon to the other jurors. The juror discovered no evidence which had not already been brought to the jury's attention in open court and a full investigation of the matter and an examination of each of the jurors showed that what he had done in no wise influenced his decision or that of any of his colleagues.

Held: That the trial court was fully warranted in refusing to set aside the verdict.

Error to a judgment of the Circuit Court of Arlington county. Hon. Walter T. McCarthy, judge presiding.

The opinion states the case.

H. A. Shockey and Charles Pickett, for the plaintiff in error.

James H. Simmonds, for the defendant in error.

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

Lawrence Hickerson, aged twenty, while riding a motorcycle along Park street, in the town of Vienna, in Fairfax county, was badly injured when the motorcycle collided with an automobile owned by Mrs. Mildred F. Burner and driven by her daughter and agent, Mrs. Mildred Kerns. To recover damages for his injuries Hickerson, through his next friend, filed suit against Mrs. Burner. The trial resulted in a verdict and judgment for the defendant below.

Since the petition for a writ of error admits the sufficiency of the evidence to sustain the verdict, we shall relate only such circumstances as are necessary for a consideration of the errors assigned.

At the point where the collision occurred, Park street, which is paved to a width of 17.5 feet, is straight and runs through a wooded area in a northwesterly and southeasterly direction. On either side of the street are located residences, sitting back some distance in the woods.

On the afternoon of March 18, 1945, between 6 and 6:30 o'clock, Edward J. Cole, whose residence is on the northeasterly side of Park street, was burning leaves and debris on the edge of his front lawn adjacent to the street. The fire caused a dense smoke which drifted across the road in a southerly direction and at times obscured the view.

The Burner car, driven by Mrs. Kerns, was backed out of the driveway leading to the residence of Charles William B. Smith, which immediately adjoins the Cole residence on the northwest, and like it, fronts on the northeasterly side of Park street. After backing out of the driveway Mrs. Kerns headed southeasterly along Park street and toward the cloud of smoke which was coming from the Cole property on her left. The testimony is uncontradicted that the car was proceeding slowly. According to the testimony of Mrs. Kerns, which is corroborated by that of a number of other witnesses, and which the jury has accepted as true, she was driving on her right-hand side of the street as she entered the cloud of smoke.

Before the car had emerged from the smoke, which at the time was so dense as to obscure the view of passing motorists who might happen to meet there, its left rear fender was struck a glancing blow by the Hickerson motorcycle which was proceeding in the opposite — that is, northwesterly — direction along Park street. As a result of the collision the motorcycle veered to its right, ran off the highway, and came to rest against the post of a mailbox some fifty feet from the point of the impact. Young Hickerson was thrown to the pavement and received serious injuries.

The evidence on behalf of the defendant showed that as the motorcycle neared and entered the cloud of smoke it was proceeding at a rapid rate of sped, possibly as much as sixty miles per hour. Also, there was evidence that as Hickerson approached the smoke cloud and the Burner car he was not looking ahead for oncoming traffic, but was directing his attention toward the persons who were raking leaves on his right on the Cole lawn.

Furthermore, the defendant's witnesses say that at the time of the collision the Burner car was well on its right-hand side of the street.

On the other hand, witnesses on behalf of the plaintiff, Hickerson, say that the motorcycle was always on its proper side of the street, was proceeding at a moderate speed, and that the point of impact was on Hickerson's side of the street.

These irreconcilable conflicts the jury's verdict has resolved in favor of the defendant, and its finding is, of course, binding on us. As has been said, the petition concedes this to be so.

The first assignment of error challenges the action of the lower court in granting Instructions (E), (F) and (G), at the request of the defendant below.

These instructions, in...