Independent Cab Ass'n v. La Touche

• Decision Date: 10 October 1955
• Docket Number: No. 4418,4418
• Citation: Independent Cab Ass'n v. La Touche, 89 S.E.2d 320, 197 Va. 367 (1955)
• Court: Virginia Supreme Court
• Parties: INDEPENDENT CAB ASSOCIATION, INCORPORATED v. PEGGY C. LATOUCHE AND JOHN MURCHISON, JR. Record

Page 320

89 S.E.2d 320

197 Va. 367

INDEPENDENT CAB ASSOCIATION, INCORPORATED v. PEGGY C. LATOUCHE AND JOHN MURCHISON, JR.

Record No. 4418.

Supreme Court of Appeals of Virginia

October 10, 1955.

Sands, Marks, Sands, Hening & Sydnor, for the plaintiff in error.

William C. Parkinson, Leith S. Bremner and Robert Clinton Moss, for the defendants in error.

JUDGE: EGGLESTON

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

Peggy C. LaTouche, hereinafter called the plaintiff, was injured when a taxicab in which she was riding as a paying passenger, and operated by Independent Cab Association, Inc., collided on the Lee Bridge in the city of Richmond, with a car driven by John Murchison, Jr. Upon her motion for judgment against the Cab Association and Murchison, there was a trial before a jury which resulted in a verdict for the plaintiff against the Cab Association in the sum of $15,000, and in favor of the codefendant, Murchison. The Cab Association's motion to set aside the verdict was overruled and judgment was entered thereon. Before the judgment became final the Cab Association filed a motion to vacate the judgment, set aside the verdict of the jury, and award it a new trial on the ground of after-discovered evidence. This motion was overruled and the matter is now before us on a writ of error awarded the Cab Association which contends that, (1) The verdict against it is contrary to the law and the evidence and without evidence to support it; (2) The court erred in its rulings on certain instructions granted and refused; and (3) The court erred in refusing to award this defendant a new trial on the basis of after-discovered evidence.

First, as to the sufficiency of the evidence:

Lee Bridge is a concrete structure running approximately north and south, spanning the James River and connecting what is referred to in the record as South Richmond with the city proper. It is 3,700 feet long, with a 40-foot roadway designed for vehicular traffic, and sidewalks on both sides. The center of the roadway across the bridge is marked by the usual unbroken double white lines. On either side of the center lines are the conventional broken white lines indicating two northbound lanes and two southbound lanes, each approximately ten feet wide. The record does not indicate the height of the bridge but it shows that there are no intersections on either side of the main structure. The maximum speed limit on the bridge is fixed at 35 miles per hour.

According to the evidence introduced on behalf of the plaintiff, on May 16, 1953, about 9:00 p.m., the taxicab was proceeding northwardly along the bridge in the right-hand northbound lane, at a speed of approximately 35 miles per hour, following a large trailer-truck. When the taxicab was about the middle of the bridge its driver turned his vehicle to the left, increased his speed to from 40 to 45 miles per hour, and without sounding his horn attempted to overtake and pass the trailer-truck on its left side. In undertaking this maneuver the left wheels of the taxicab went across the double white lines marking the center of the roadway and into the southbound passing lane and collided with the Murchison car which was being driven southwardly in the southbound passing lane. The left front of the taxicab collided with the left front of the Murchison car and the force of the impact knocked the latter car around so that its rear end went across the double white lines. The Murchison car came to rest, headed southwest, across the center lines with its rear in the northbound passing lane and its front in the southbound passing lane. After the impact the taxicab came to rest, headed northwest, with its left front wheel over the double white lines and its radiator approximately across the center lines.

This account of how the collision occurred was related by the plaintiff, by Murchison, and by a passenger in the latter's vehicle. Both Murchison and Miss LaTouche testified that at the time the taxicab undertook to pass the trailer-truck the latter vehicle was partly in the northbound passing lane, with the result that there was insufficient space for the taxicab to pass it on the left without crossing the center lines of the roadway.

Worsham, the driver of the taxicab, died shortly after the collision from causes unconnected therewith and was not available as a witness.

Robert E. Hunter, a service man, was called as a witness for the Cab Association. He testified that he was walking northwardly across the bridge on the sidewalk adjacent to the northbound lane. The northbound taxicab overtook and passed him and as it reached the approximate center of the bridge and was proceeding in the northbound passing lane it collided with the southbound Murchison car which, he said, came across the center lines and into the lane in which the taxicab was proceeding. Just before the impact the hood of the Murchison car flew up. He was positive that just before the collision the taxicab was not in the act of overtaking and passing a trailer-truck, or any other vehicle. According to this witness the force of the impact knocked the front of the taxicab across the double center lines of the roadway and into the southbound passing lane. The rear of the Murchison car came to rest in the northbound passing lane.

A police officer, George S. Perkins, who made an investigation of the accident before the vehicles were moved, testified that he found the taxicab headed in a northwesterly direction with its left front wheel beyond the double center lines and in the southbound passing lane, its radiator on the center lines, and its rear in the northbound passing lane. He found the Murchison car headed southwesterly, partly across the doublt center lines, with about half of its body in the northbound passing lane. He saw debris from the impact partly on the double white lines and partly to the east thereof. He observed in the northbound passing lane and on or near the double center lines what he described as 'push marks,' indicating that the taxicab had been driven back by the force of the impact.

Andrew S. Chancellor, an investigator for the Cab Association, reached the scene within eight or ten minutes after the collision. He found the taxicab headed in a northwesterly direction with its left front on the center lines and its rear in the northbound passing lane. The Murchison car was headed in a southwesterly direction with its right front on the center lines and its rear in the northbound passing lane. This witness found debris in the northbound passing lane. In the same lane he found 'push marks' which indicated, he said, that the taxicab had been pushed over by the impact.

Chancellor further testified that Murchison told him that just before the impact the hood to his car flew up which caused him to lose control of his vehicle. Murchison testified that the impact had caused the hood to fly up.

It was the function of the jury to weigh this conflicting evidence, to determine the proximate cause of the collision, and to say whether the driver of the taxicab failed to exercise the high degree of care which the law imposed upon him for the safety of his paying passenger.

The Cab Association complains of the action of the trial court in granting over its objection Instruction No. 2 which read thus:

'The court instructs the jury that the driver of an overtaking motor vehicle, when traveling outside of a business or residence district, shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction. And the court tells you that if you believe from the evidence that the driver of the cab of the defendant, Independent Cab Ass'n., Inc., at or about the time of the accident in question, attempted to overtake and pass a motor vehicle proceeding in the same direction, outside of a business or residence district, without giving audible warning with his horn or other warning device, the defendant, Independent Cab Ass'n., Inc., was guilty of negligence.'

This instruction was predicated upon Code, § 46-225, which reads:

'Horn signal upon overtaking vehicle. -- The driver of an overtaking motor vehicle when traveling outside of a business or residence district shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction.'

'Business' and 'residence' districts' are thus defined in our traffic laws:

Code, § 46-185. " Business district' defined. -- The territory contiguous to a highway where seventy-five per centum or more of the total frontage, on both sides of the highway, for a distance of three hundred feet or more is occupied by buildings actually in use and operation for business purposes shall constitute a business district for purposes of this title.'

Code, § 46-186. " Residence district' defined. -- The territory contiguous to a highway not comprising a business district where seventy-five per centum or more of the total frontage, on both sides of the highway, is mainly occupied by dwellings or by dwellings and buildings in use for business purposes shall constitute a residence district for purposes of this title.'

It will be observed that in each statute the factor which determines the nature of the district is the 'occupied' 'frontage on both sides of the highway.' If 'seventy-five per centum or more of the total frontage, on both sides of the highway, * * * is occupied by buildings actually in use and operation for business purposes,' it is a business district. If, on the other hand, 'seventy-five per centum or more of the total frontage, on both sides of the highway, is mainly occupied by dwellings or by dwellings and buildings in use for business purposes,' it is a residence district. Hence, the phrase 'territory contiguous to a highway' means the territory lying along and adjoining the highway. Mitchell v. Melts, 220 N.C. 793, 18...