Holbert v. Evans

• Decision Date: 06 September 1968
• Citation: Holbert v. Evans, 163 S.E.2d 187, 209 Va. 210 (1968)
• Parties: Oliver A. HOLBERT, III, an infant, etc. v. Frankie Jeanette EVANS.
• Court: Virginia Supreme Court

Page 187

163 S.E.2d 187

209 Va. 210

Oliver A. HOLBERT, III, an infant, etc. v.Frankie Jeanette EVANS.

Supreme Court of Appeals of Virginia.

Sept. 6, 1968.

F. Thompson Wheeler, II, Wheeler & Michalos, Newport News, for plaintiff in error.

E. Ralph James, Jr., James, Richardson & James, Hampton, for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

CARRICO, Justice.

Oliver A. Holbert, III, an infant four years of age, by his mother and next friend, Catherine Holbert, the plaintiff, filed a motion for judgment against Frankie Jeanette Evans, the defendant, seeking to recover damages for personal injuries sustained by the infant plaintiff when he was struck, while a pedestrian, by an automobile allegedly being operated in a negligent manner by the defendant.

A jury trial resulted in a verdict in favor of the defendant.The verdict was approved by the trial court, and the plaintiff was granted a writ of error.

Under familiar rules, the evidence will be stated in the light most favorable to the defendant since she was awarded the jury's verdict.

The accident occurred at approximately 3:30 p.m. on May 2, 1965, a Sunday afternoon, in the middle of a block of West Queen Street in the city of Hampton.West Queen Street runs east and west, is 34 feet wide, and is straight and level.

The defendant was proceeding in a westerly direction on West Queen Street, en route home from her employment as a nurse at Kecoughtan Veterans Hospital.She was operating her vehicle at a speed of 20 to 23 m.p.h. in a 25-mile zone as she approached two apartment buildings located on the south side of the street, to her left.Two large bushes growing in a yard just east of the apartment buildings obstructed her view, and when she passed the bushes, she observed a group of children playing 'on the side of * * * the first apartment going west.'She applied her brakes and slowed down and 'was watching the kids playing' when 'all of a sudden there was a blur.'She saw a 'little boy running real fast, right in front' of her car.She'slammed on brakes and pulled * * * over to the right' and brought her vehicle to a stop.The infant plaintiff, who had broken away from the group of children playing near the apartment building, was struck and thrown to the pavement.

The plaintiff contends that the trial court erred in admitting certain testimony of Robert Baker, a city policeman who investigated the accident.

The plaintiff first called the defendant as an adverse witness and had her detail the manner in which the accident occurred.Officer Baker was then called as a witness by the plaintiff and through him was admitted into evidence a diagram showing the physical layout of the scene of the accident, the position of the infant plaintiff where he came to rest on the street after being struck, the location of the defendant's vehicle after the accident, and the presence of 42 feet of skid marks leading to the defendant's vehicle.The officer also identified several photographs he had made of the scene and of the defendant's vehicle, which were admitted as exhibits.

On cross-examination, Officer Baker was asked if the defendant had made a statement to him.He replied that the defendant had stated that she'saw a little boy running into the path of (her) car'; that she had applied her 'brakes and turned to the right to avoid him'; and that 'then (her) car struck him.'

Officer Baker was then asked this question:

'Was the statement that (the defendant) gave you then compatible or did it fit in with your physical findings at the scene of the accident in a manner that you have drawn this automobile facing somewhat to the right and the projected skid marks?'

Over the objection of the plaintiff, the officer was permitted to reply, 'Yes.'

The plaintiff argues that by admitting the officer's affirmative answer to the quoted question, the trial court improperly permitted the witness 'to state his opinion or conclusion as to the compatibility of the statement of the defendant with the physical findings at the scene of the accident.'

We believe that the question was improper and that the plaintiff's objection to it should have been sustained because it called for the expression of an opinion concerning a subject upon which the jury was as competent to pass judgment as the witness.Atlantic Coast Line R. Co. v. Caple, 110 Va. 514, 519, 66 S.E. 855, 857(1910).

However, the admission of the officer's affirmative answer was, in our view, an innocuous thing.We fail to see how the jury could have been misled thereby, especially since the defendant had already testified, at the behest of the plaintiff, as to the manner in which the accident occurred, and the jury was free to decide whether her sworn testimony differed from her unsworn statement to the officer and from the physical facts.To the extent that the admission of the disputed testimony was error, we hold that it was harmless error.Jordan v. Taylor, 209 Va. 43, 48--49, 161 S.E.2d 790, 793--794.

The plaintiff next contends that the trial court erred in granting, at the request of the defendant, Instruction F, which stated that 'Virginia law recognizes that some accidents are unavoidable' and that if the jury believed the accident in question to be 'unavoidable as to the defendant,' its verdict should be for the defendant.The plaintiff objected to the instruction, not as to form, but on the ground that 'this is not an unavoidable accident case' because 'there is evidence from which the jury can properly conclude that the defendant was responsible for this accident.'

In his appellate brief, the plaintiff takes a somewhat different tack, urging us to limit the granting of unavoidable accident instructions to 'those cases where the cause of the accident is something beyond the control of those involved in it * * * such as unanticipated illness or unanticipated mechanical failure.'That this should be done, the plaintiff says, 'can be seen' from our own prior decisions and those in other jurisdictions.

We have dealt with the subject on a number of occasions:

In Ball v. Witten, 155 Va. 40, 47, 154 S.E. 547, 549(1930), involving the death of a five-eyar-old pedestrian, we held that it was error to grant an instruction which told the jury it should find for the defendant if it believed that he was driving his automobile in a lawful manner and without negligence and that the injury to the child could not have been avoided.We said that the 'instruction was not applicable to the facts and circumstances of the case' because the defendant saw the deceased and several other children in the road about 350 or 400 feet in front of him, was alerted to the danger, and 'should have proceeded with his car under such control' as was necessary to avoid injury to the deceased.

In Virginia Public Service Co. v. Carter, 168 Va. 171, 179--180, 190 S.E. 155, 158--159(1937), the plaintiff's horse was injured when it ran into a guy wire constructed negligently by the defendant.An instruction was offered by the defendant which would have told the jury that the defendant was not liable if the horse was injured 'by a mere accident, which, by the exercise of ordinary care and reasonable foresight, could not have been foreseen.'The trial court added to the offered instruction these words: 'But an occurrence to which human negligence proximately contributes is not in law an accident.'We held that there was no error on the part of the trial court in adding the amendment to the instruction before it was granted because there was 'no evidence that the accident was unavoidable.'

In Matthews v. Hicks, Adm'r., 197 Va. 112, 116--117, 87 S.E.2d 629, 632(1955), the operator of a road...