Interstate Veneer Co. v. Edwards, 3671

• Decision Date: 19 June 1950
• Docket Number: No. 3671,3671
• Citation: 191 Va. 107,60 S.E.2d 4,23 A.L.R.2d 532
• Parties: , 23 A.L.R.2d 532 INTERSTATE VENEER COMPANY, INCORPORATED, A CORPORATION, AND JAMES VAUGHAN v. I. W. EDWARDS, ADM'R OF THE ESTATE OF I. W. EDWARDS, JR., DECEASED. Record
• Court: Virginia Supreme Court

Page 4

60 S.E.2d 4

191 Va. 107, 23 A.L.R.2d 532

INTERSTATE VENEER COMPANY, INCORPORATED, A CORPORATION, AND JAMES VAUGHAN v. I. W. EDWARDS, ADM'R OF THE ESTATE OF I. W. EDWARDS, JR., DECEASED.

Record No. 3671.

Supreme Court of Appeals of Virginia

June 19, 1950.

William G. Maupin and J. Edward Moyler, for the plaintiffs in error.

James T. Gillette and Junius W. Pulley, for the defendant in error.

JUDGE: BUCHANAN

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

I. W. Edwards, Jr., died as a result of injuries received when the car he was driving was struck by a truck owned by Interstate Veneer Company, Inc., and driven by its agent, James Vaughan. The administrator of Edwards brought this action against Interstate and Vaughan, charging that the death of Edwards was caused by the negligence of Vaughan in failing to keep a proper lookout and in driving his truck at great speed on his left-hand side of the road. The jury returned a verdict for the plaintiff in the sum of $15,000, upon which the trial court entered judgment.

There are two assignments of error. We need not be concerned with the first, which is to the overruling of defendants' motion to strike, made at the conclusion of plaintiff's evidence. By thereafter introducing their own evidence defendants waived the right to rely upon their motion and the entire record is now to be considered. Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E. (2d) 265, 266.

The second assignment brings in question the sufficiency of the evidence to support the verdict. The defendants contend that the accident was due to a failure of the steering mechanism of the truck, and not to any negligence of the driver, Vaughan. It is conceded that there was no negligence on the part of Edwards, the deceased.

The accident happened at about 6:45 a.m., October 22, 1947, on a straight stretch of Route 58 between Emporia and Courtland, in Southampton county. The hard surface was 18 feet wide, practically level but a little higher in the center, and bordered by gravel shoulders five or six feet wide. The shoulder on the truck's side was almost level with, but a little below, the hard surface, making a slight decline. The road was dry and the weather clear.

Edwards, alone in a 1937 model Ford, was driving east [191 Va. 111] at 35 or 40 miles an hour. Vaughan was going west, driving a 1947 Chevrolet tractor-truck with semi-trailer, used for hauling logs. A man named Seaborn was riding with him. As the truck reached a point about 75 feet from the Edwards car, it cut diagonally across the road to its left and struck the Edwards car. Edwards had apparently recognized danger as the truck approached and at some distance back he had pulled to his right until he was either entirely off the hard surface or his left wheels were barely on it. His car was struck on its left side, knocked back six or seven feet into the ditch and stopped against a small embankment with the front of the truck jammed against it. The car was practically demolished and Edwards died a few hours later from his injuries. Vaughan and Seaborn were not hurt.

There was evidence from which the jury could conclude that Vaughan was driving the truck at excessive speed. Plaintiff's witness, Moore, testified that the truck was running around 60 miles an hour when he passed it about three-fourths of a mile from the accident. Plaintiff's witness, Lee, testified it was going about 60 miles an hour when it passed him as he was standing beside the road 400 yards from the place of collision. Moore's evidence was objected to on the ground that the speed of the truck some distance down the road did not necessarily prove that it was going at that speed at the time of the accident. That is, of course, true, and we held in Grinstead v. Mayhew, 167 Va. 19, 23, 187 S.E. 515, 517, that excessive speed a mile and a quarter from the place of accident was not, of itself, sufficient in that case to warrant an inference of excessive speed at the time of the accident. But whether such evidence has probative value is usually within the sound discretion of the trial court, depending on distance from the scene of accident and possibly other factors. Slate v. Saul, 185 Va. 700, 708, 40 S.E. (2d) 171, 174. It was admissible here and its probative value was aided by the testimony of Lee, unobjected to, that it was maintaining that speed when only 400 yards from the point of collision.

Nor does that evidence stand alone on the question of speed. It finds support in the physical facts, which may be, and in this case were, mute evidence of high speed. Davis v. Webb, 189 Va. 80, 85, 52 S.E. (2d) 141, 143, and cases there cited.

The Edwards car had stopped or practically stopped when it was struck. Just before the truck cut across to its left it had run for 33 feet with its right wheels off the hard surface and on the shoulder. From the point where it came back on the hard surface it skidded on the dry road a distance of 75 feet before striking the Edwards car. Yet it struck with such force that it reduced the Edwards car to a mass of wreckage and practically demolished the front of the truck, knocking the front part back over the wheels and leaving the wheels clear out from under the truck. A second trip was made by the garage people to bring the front wheels in.

Defendants' evidence was that the truck, which was empty save for its two occupants, was running at 35 or 40 miles an hour. There was evidence for the plaintiff that at that speed it could have been stopped in 35 or 40 feet.

Clearly there was sufficient evidence to support the charge that Vaughan was driving the truck at a speed prohibited by law (Code, 1950, sec. 46-212), and was therefore negligent.

At the time of the collision the deceased was on his side of the road -- in fact, nearly or entirely off the hard surface on his side, evidently trying to escape what he saw was threatened. Admittedly the accident occurred without any fault of his. It was the duty of Vaughan to drive his truck on his right-hand side of the road (Code, 1950, sec. 46-220). Failure to do so was negligence. Smith v. Turner, 178 Va. 172, 16 S.E. (2d) 370, 136 A.L.R. 1251; Sheckler v. Anderson, 182 Va. 701, 29 S.E. (2d) 867. He did not drive it on his side, but it came across to its extreme left and there collided with the car of Edwards, causing his death. Such movement of his truck was evidence of negligence sufficient to make a prima facie case for the plaintiff and to cast upon the defendants the burden of producing evidence in explanation.

In Driver v. Brooks, 176 Va. 317, 328, 10 S.E. (2d) 887, 892, the plaintiff was riding in a car being properly driven on her right-hand side of the road when suddenly and unexpectedly a car driven by defendant Johnson came from its right-hand side of the road, across the highway to its left and violently collided with the car occupied by the plaintiff. It was there said:

'In the instant case, the irregular movements of Johnson's car were undeniably the sole cause of the collision. These movements fully evidenced negligent action on the part of Johnson, unless it were shown that a sudden unforeseen illness caused him to lose control of the car. The burden of such proof, in explanation of his conduct, rested upon the defendants. The evidence in that connection is of doubtful and inconclusive character.'

In Bizzaro v. Payne, 4 Cir., 169 F. (2d) 851, 852, on a four-lane highway with double white lines in the middle, the defendant's car went into a skid, crossed the entire four lanes and struck plaintiffs' car. The court there said: 'The Virginia statute forbids driving to the left of two adjacent solid lines marking double traffic lanes on a highway. Therefore, one whose car is to the left of such lines has a burden of explanation.'

In Viginia Transit Co. v. Durham, 190 Va. 979, 59 S.E. (2d) 58, a case in which plaintiff, while walking on a sidewalk, was struck by a bus, we said:

'Having proved that the bus was under defendant's exclusive control and that it entered upon the sidewalk and inflicted injury, the production of evidence that its entry upon that forbidden area was without negligence on its part was thus cast and imposed upon defendant.'

See also, Trauerman v. Oliver, 125 Va. 458, 462, 99 S.E. 647, 648; L. Bromm Baking Co. v. West, 166 Va. 357, 360-1, 186 S.E. 289, 290; Coerver v. Haab, 23 Wash. (2d) 481, 161 P. (2d) 194, 161 A.L.R. 909; Weldon Tool Co. v. Kelley, 81 Ohio App. 427, 76 N.E. (2d) 629; Jolley v. Clemens, 28 Cal.App. (2d) 55, 82 P. (2d) 51; Anderson v. Freis, 61 CalApp. (2d) 159, 142 P. (2d) 330; Consolidated, Gas, etc., Co. v. O'Neill, 175 Md. 47, 200 A. 359.

When all the evidence was in, the ultimate burden remained on the plaintiff to prove his case; that is, to show by a preponderance of the evidence that the death of his intestate was caused by the negligence of the defendants. Darden v Murphy, 176 Va. 511, 11 S.E. (2d) 579; Virginia Transit Co. v. Durham, supra. But when the plaintiff made out a prima facie case, as he did, the defendants were then under the necessity of explanation. Not just any sort of explanation will do. It must be a reasonable explanation, one which the jury can accept, tending to show that what happened was due to something other than defendants' negligence. It is sufficient if it outweighs the plaintiff's prima facie case, or if it leaves the ultimate question of defendants' negligence in equipoise. Tidewater Stevedore Co. v. Lindsay, 136 Va. 88, 95, 116 S.E. 377, 378; Anderson v. Sisson, 170 Va. 178, 185, 196 S.E. 688, 691. These are questions for the jury unless the evidence introduced in explanation is of such character that reasonable men may not differ as to its effect. Edgerton v. Norfolk So. Bus Corp., 187 Va. 642, 653, 47 S.E. (2d) 409, 415.

The explanation offered...