Hogan v. Carter

• Decision Date: 02 December 1983
• Docket Number: Nos. 810041,810065 and 810090,s. 810041
• Citation: 310 S.E.2d 666,226 Va. 361
• Parties: Virginia P. HOGAN v. Robert Jackson CARTER and William Franz Grinstead. William Franz GRINSTEAD v. Robert Jackson CARTER and Virginia P. Hogan. Robert Jackson CARTER v. Virginia P. HOGAN and William Franz Grinstead.
• Court: Virginia Supreme Court

Page 666

310 S.E.2d 666

226 Va. 361

Virginia P. HOGAN v. Robert Jackson CARTER and William Franz Grinstead.

William Franz GRINSTEAD v. Robert Jackson CARTER and Virginia P. Hogan.

Robert Jackson CARTER v. Virginia P. HOGAN and William Franz Grinstead.

Nos. 810041, 810065 and 810090.

Supreme Court of Virginia.

Dec. 2, 1983.

Richard W. Davis, Radford (Davis, Stone & Wall, Radford, on briefs), for appellant in Record No. 810041, and for appellees in Record Nos. 810065 and 810090.

Richard C. Rakes, Roanoke (Gentry, Locke, Rakes & Moore, Roanoke, on brief), for appellees in Record Nos. 810041 and 810065, and for appellant in Record No. 810090.

James F. Johnson, Jonathan S. Kurtin, Roanoke (Harvey S. Lutins, Woods, Rogers, Muse, Walker & Thornton, Lutins, Shapiro & Albert, Roanoke, on briefs), for appellees in Record Nos. 810041 and 810090, and for appellant in Record No. 810065.

Melissa J. Warner, Roanoke, on briefs, for appellees in Record Nos. 810041 and 810065.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON, RUSSELL and THOMAS, JJ.

POFF, Justice.

We have consolidated three appeals from a judgment entered in two cases, consolidated for trial, which arose out of a two-car collision. Mrs. Virginia Hogan, a passenger in a car driven by her grandson, Robert Jackson Carter, claimed damages for personal injuries against Carter and William Franz Grinstead, the driver of the other car. Grinstead sued Carter, claiming damages for personal injuries. A jury found for Carter in Grinstead's suit and against both Carter and Grinstead in Mrs. Hogan's suit. The jury awarded Mrs. Hogan $50,000 in damages, the trial court ordered a remittitur of $25,000, Mrs. Hogan accepted the remittitur under protest, and the trial court entered judgments on the verdicts and the damage award as remitted. All three parties appeal.

The collision occurred about 10:00 p.m. on July 23, 1978 near one of the entrances to the Radford Shopping Plaza. Adjacent to that entrance is a McDonald's restaurant. The plaza is located on the south side of U.S. Route 11 just west of Radford. As described by the investigating officer, State Trooper Paul W. O'Dell, Jr., Route 11, a four-lane highway, divided at the time by double center lines, ran generally east and west. Each lane was 13 feet wide, the highway was straight with a slight downgrade heading east, the area was "fairly well-illuminated", and the speed limit was 40 m.p.h. The physical evidence showed that the impact occurred in the right eastbound lane "a foot or so" from the extension of the curb line at the plaza entrance. The eastbound car, driven by Grinstead, left 30 feet of skid marks beginning in the middle of the right lane and heading slightly to the right to the point of impact. Damage to the vehicles, both of which were a total loss, indicated that the front of the Grinstead car, a white Plymouth sport coupe, had struck the right front door of the Carter car, a four-door Chevrolet sedan. The Plymouth came to rest near the point of impact, the Chevrolet at the foot of an embankment in the plaza east of the entrance. Traffic lights were located on the highway 212 feet west of the point of impact, and a Gulf service station was located 242 feet farther west. The officer testified that Grinstead told him that "he was going forty-five to fifty through a green light". Carter's mother, seated beside the right front door, was killed, and Mrs. Hogan, seated next to her, was seriously injured. Grinstead, thrown against his windshield, sustained a blow to his head and injuries to his knees.

Called by Mrs. Hogan as an adverse witness, Carter, 19 years old at the time of the accident, testified that he stopped his car near the center lines in the westbound passing lane opposite the entrance to the plaza, engaged his left turn directional signal, and waited "for about a minute, minute and a half" for three oncoming cars to pass. Seeing no other traffic to the west, Carter began his turn. He said that, as he was crossing the eastbound passing lane, his grandmother "hollered, 'Robert,' and when I looked I seen some bright lights coming from a car". The car, which he first saw "just a second or two" before the collision, was approaching in "the lane next to the lines". "I gave all the gas to the car I could," Carter said, and "I remember thinking that I had got out of his way and was beginning to relax a little and let my foot up ... and that's when I was hit." Carter estimated that the car he saw was traveling "at least fifty-five, maybe more."

Carter's brother, Ronnie, and his sisters, Velvet and Virginia, were riding in the back seat of his car. Asked whether the lights on the Grinstead car were burning, Virginia testified, "Not when I first turned around, I didn't see nothing. When Grandma hollered, I turned and looked, and then I seen the lights flash on". The lights, which were "a couple of car lengths away" in the eastbound passing lane, "moved over to the second lane and then it hit us."

Grinstead, 17 years old at the time, had been attending a birthday party at the home of his girlfriend. Her home was located in a community with no street lights, and Grinstead testified he turned on his headlights as he left her driveway. He entered Route 11 approximately 1000 feet west of the scene of the accident and proceeded east in the right lane. The traffic lights ahead of him were green and, as he passed the Gulf service station, he saw that his speedometer registered "between forty-five and fifty." Grinstead explained that "I was just checking the speed so I could see if that light was going to change or not." Asked if he changed his speed at that point, he replied, "I don't know if I slowed down or speeded up" but the traffic lights "never did change". Grinstead testified that he remained in the right eastbound lane from the time he entered the highway and that he did not see the Carter automobile or its lights until it started across that lane.

Mary Phillips, standing in the plaza parking lot facing the traffic lights, testified that "I noticed [Grinstead's] car coming through the light, and the Carter car was turning into the McDonald's parking lot." Her attention was attracted to the Grinstead car because "[i]t was a white car" and because "he was travelling pretty fast" and "too fast for going through that spot."

Mrs. Hogan confirmed Carter's testimony that he had waited in the westbound passing lane with his left-turn signal blinking while three eastbound cars passed. At the time Carter started his turn, she saw no oncoming traffic. As Carter entered the turn, she looked to her right and saw a car in the eastbound passing lane "coming at us at a high rate of speed". In her "opinion" or "guess", Grinstead was traveling "sixty-five to seventy miles an hour." Mrs. Hogan "never did see any lights" but she was able to see the car because the area was "[p]retty well" illuminated. At one point she testified that Grinstead's car was "maybe three cars back" when she first saw it but, later, that it was "[u]nder the light." "I thought," she said, "that if [Carter] speeded up, he could get out of the way of the car. That's the last I remember, I blacked out."

On cross-examination, Mrs. Hogan was asked if she and Carter had had an equal opportunity to see everything that occurred. She replied, "Yes sir, I believe so." Carter's counsel also asked Mrs. Hogan, an experienced driver, whether, if she had been driving, she would "have felt like it was safe to make the turn at the time Robert [Carter] did". She replied, "Probably so."

I. GRINSTEAD'S APPEAL

Both Hogan and Carter moved to strike Grinstead's evidence and enter summary judgment against him. The trial court ruled that "Grinstead convicts himself of negligence on speeding" but that "the question of ... proximate cause ... should be presented to the trier of fact." Accordingly, the court overruled the motions and granted Instruction No. 8 in the following language:

The Court instructs the jury that William Grinstead was guilty of negligence as a matter of law in driving in excess of the maximum speed limit. And if you further find that such negligence was a proximate cause of the collision with the Carter vehicle then you shall return your verdict in favor of Virginia Hogan against William Grinstead and also in favor of Robert Carter in the case of Grinstead v. Carter.

Appealing from the two judgments against him, Grinstead concedes that he was traveling in excess of the speed limit when he passed the Gulf service station and that such speed constituted negligence as a matter of law. But, he argues, "Grinstead's slightly excessive speed when still 454 feet or more from the place of collision is immaterial unless it continued to a point close enough to the accident to have been a contributing cause of it." He adds that "Instruction No. 8 was justified only if the evidence conclusively established that Grinstead's speed was still excessive when he reached that critical point."

Grinstead relies upon several cases in which we have held that evidence of excessive speed at one place on a highway is not sufficient, standing alone, to justify an inference of excessive speed at another place. But we have never held that this rule is absolute or that proof of speed at the moment of impact must be conclusive. See Interstate Veneer Co. v. Edwards, 191 Va. 107, 60 S.E.2d 4 (1950).

In Interstate Veneer Co., the distance between the location of the witness and the scene of the accident was measured in yards. In the cases Grinstead cites, the distance was measured in miles. King v. Commonwealth, 217 Va. 601, 231 S.E.2d 312 (1977) (more than two miles); Grasty v. Tanner, 206 Va. 723, 146 S.E.2d 252 (1966) (two and eight-tenths miles); Grinstead v. Mayhew, 167 Va. 19, 187 S.E. 515 (1936) (one and one-fourth miles). Here, Grinstead testified at trial and acknowledged on brief that he was exceeding the speed limit at a point...