Hooker v. Hancock

• Decision Date: 11 October 1948
• Citation: 188 Va. 345,49 S.E.2d 711
• Parties: HOOKER. v. HANCOCK.
• Court: Virginia Supreme Court

188 Va. 345

49 S.E.2d 711

HOOKER.

v.HANCOCK.

Supreme Court of Appeals of Virginia.

Oct. 11, 1948.

Error to Circuit Court, Roanoke County; T. L. Keister, Judge.

Action by Cora Lee Hancock, administratrix of the estate of Charles L. Hancock, deceased, against I. T. Hooker, to recover for death of plaintiff's decedent when struck by automobile driven by defendant. To review judgment for plaintiff, the defendant brings error.

Reversed and final judgment.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

Woods, Rogers, Muse & Walker, of Roanoke, for plaintiff in error.

Kime & Hoback. of Salem, for defend-ant in error.

MILLER, Justice.

Charles L. Hancock died on the 9th day of October, 1946, as a result of injuries sustained eight days prior thereto when struck by an automobile driven by I. T. Hooker. Cora Lee Hancock, his administratrix, obtained a verdict of $10,000 for the wrongful death of decedent. From a judgment entered thereon, I. T. Hooker obtained this writ of error.

The parties will be hereinafter referred to in accordance with the positions occupied by them in the lower court.

Numerous errors are assigned to rulings of the trial court. They include refusal to set aside the verdict as contrary to the law and evidence, admission of evidence objected to by defendant, giving certain instructions on behalf of plaintiff and refusal of an instruction offered by defendant.

In our opinion the decisive question is whether the evidence conclusively discloses negligence on the part of decedent which proximately caused or efficiently contributed to his death.

Though there is conflict in the testimony as to the effectiveness of the lookout maintained by defendant immediately before and at the time of collision, yet the evidence insofar as it bears upon decedent's action and movements immediately prior to and at the time of the collision is undisputed; nor can fair-minded men differ as to the inferences to be drawn therefrom. Therefore, the question whether decedent was free from negligence which contributed to the collision is one of law to be decided by the court.

In determining whether this verdict is to be set aside and final judgment entered for the defendant, we are governed by the terms of sec. 6363 of the Code of Virginia, 1942, Michie. That section provides that when the evidence is certified, which has been done in the instance, " * * * the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it." Orndorff v. Howell, 181 Va. 383, 25 S.E.2d 327.

It must be kept in mind that plaintiff is fortified by a jury's verdict and the judgment of the trial court--thus he occupies the most favored position known to the law. Neal v. Spencer, 181 Va. 668, 26 S.E.2d 70; Virginia Electric & Power Co. v. Stcinman, 177 Va. 468, 14 S.E.2d 313, and Tri-State Coach Corporation v. Walsh, 188 Va. 299, 49 S.E.2d 363.

Only if it plainly appears that decedent was guilty of contributory negligence which caused or efficiently contributed to his death should this court exercise the power given under the preceding section. Yet if that fact is so conclusively established by the evidence that fair-minded men could not differ, then any judgmentrendered in plaintiff's favor is plainly wrong and it becomes our duty to so decide. McQuown v. Phaup, 172 Va. 419, 2 S.E.2d 330.

When the evidence is viewed as a whole in the light most favorable to plaintiff, it appears that the unfortunate event occurred as follows:

Melrose Avenue, a thoroughfare in the city of Roanoke upon which much traffic passes, runs approximately east and west and its usual width is about fifty feet. Eastwardly from where the collision happened its southern curb or boundary line curves or loops somewhat to the south, which has the effect of materially widening the street for some distance. Where it is widened by this curve on its south side and about midway of the loop, it is intersected from the south by 24th Street, which street, however, does not extend across Melrose Avenue at this point.

The collision happened on the 1st day of October, 1946, at about 7:00 o'clock p. m. Decedent, while hurriedly walking or running from the north to the south side of Melrose Avenue, was struck by defendant's automobile at a point about fifty or sixty feet west of the intersection with 24th Street. He was almost across Melrose Avenue, being about five feet from its southern curb, when hit by the right front fender of defendant's car which was proceeding in an easterly direction and approaching 24th Street. The point of impact took place in front of a filling station on the south side of the street almost at the western end of the curve or loop in the southern side of Melrose Avenue and where the street is about fifty-two feet wide. Though the collision did not occur at the intersection, it did happen where about seventy-five per cent of the pedestrians cross Melrose Avenue who undertake to do so in that immediate vicinity. It can be crossed more conveniently at this point because it is much narrower here than where it intersects 24th Street.

There is no evidence as to the weather or atmospheric conditions obtaining. The street was reasonably well lighted by two nearby street lights on the north side of Melrose Avenue and by lights at the filling station on the south side of the street.

Defendant and his wife were the only occupants of the automobile. It was being driven in the proper lane with the right side of the car about five feet from the southern curb of the street. The headlights were burning and the brakes unimpaired. The speed of the car is rather conclusively established to have been from fifteen to twenty miles per hour, though decedent, shortly before he died, said he thought it probably was about twenty-five miles per hour. It was stopped within six to eight feet after striking decedent.

There is no evidence that defendant was aware that pedestrians usually crossed Melrose Avenue at the place where decedent was struck. He was approaching 24th Street and under a duty to look for pedestrians at that intersection and for vehicular traffic that might cross his path in entering or leaving that street.

There was other traffic on the highway. Two or more automobiles with bright headlights were then proceeding in a westerly direction along Melrose Avenue and so meeting defendant as he neared the place of accident.

At the trial defendant was called as an adverse witness. He testified that lights on approaching automobiles prevented him from seeing decedent until he was almost in front of or actually in front of the automobile. His testimony was that he first saw decedent running in a southerly direction and about four to six feet in front of his left fender. Later in the trial, he was recalled as a witness and cross-examined. At that time he again insisted that the lights on the cars approaching him affected his vision and prevented his seeing decedent sooner.

Though the evidence is undisputed that defendant was approaching or passing two or more oncoming cars at about the time of the accident, there is, however, testimony that shortly after the accident he made statements to the effect that he did not see decedent until he hit him, and to some witnesses he said nothing about being blinded by the lights of oncoming cars.

The testimony of the defendant and that of several witnesses called on behalf of the plaintiff disclose that defendant did not see decedent until about the time he stepped in front of the automobile. Viewed most favorably to the plaintiff, this evidence is sufficient to establish that defendant may have failed to keep a proper lookout. We are of opinion that the issue of whether defendant was negligent in failing to keep a reasonable lookout was properly submitted to the jury.

The following excerpts from the uncontradicted testimony of several witnesses establish the place, manner and circumstances under which Mr. Hancock, who was seventy-two years of age, undertook to cross that busy thoroughfare in the nighttime with traffic moving thereon in both directions.

Mrs. Hooker gave this version of the events:

"Q. I believe you were coming towards Roanoke, you were coming eastward? A. We were going east, and this man just seemed like run right in front of us and I said, Oh, Mr. Hooker you are going to hit a man and I did this (illustrating by putting hands over eyes) that is all I saw.

"Q. You said what? A. You are going to hit a man; I didn't say he hit, I said you are going to hit a man.

"O. Tell the jury how this Mr. Hancock was traveling. A. He seemed to be running, moving fast, real fast.

"Q. Were there any other cars coming in the road? A. Yes, the road--there were cars coming and going.

"Q. You mean by going and coming going in the same direction that you were and approaching you. A. Yes.

"Q. Going east and west you mean? A. Yes, going east and west; that is what I mean.

"Q. What kind of lights, if any, did these cars have on them? A. Real bright.

"Q. Bright lights? A. Yes."

On cross-examination, she further said:

"Q. Whereabouts was the man with reference to your automobile in the street? A. He was right, real close to us, seemed to me like.

******

"Q. Why couldn't you see this man before? A. The lights were blinding us."

Mr. Moore, on cross-examination, testified that the explanation given by Mr. Hancock when he visited him at the hospital was:

"A. I went--so I could fill out my report I went to the hospital and I asked Mr. Hancock his age, he gave it to me as 72. I asked him how he was crossing the street and he said he had been over there and was crossing from the north side to the south side, going over to the filling station. I asked him what hit him and he said he did not remember, he did not know."

On Mr. Cawley's cross-examination, he testified that when he went to the hospital, Mr. Hancock, in undertaking to inform...