Jenkins v. Womack

• Decision Date: 22 June 1959
• Docket Number: No. 4964,4964
• Citation: Jenkins v. Womack, 201 Va. 68, 109 S.E.2d 97 (1959)
• Parties: JAMES L. JENKINS v. ALVANIA WOMACK. Record
• Court: Virginia Supreme Court

Page 97

109 S.E.2d 97

201 Va. 68

JAMES L. JENKINS v.ALVANIA WOMACK.

Record No. 4964.

Supreme Court of Appeals of Virginia

June 22, 1959.

William L. Shapero(Maurice B. Shapero; Shapero & Shapero, on brief), for the plaintiff in error.

Stanley E. Sacks(Sacks & Sacks, on brief), for the defendant in error.

JUDGE: BUCHANAN

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

The plaintiff below, Mrs. Alvania Womack, obtained a jury verdict against the defendant, James L. Jenkins, for personal injuries suffered by her while she was riding in an automobile being driven by the defendant.The court entered judgment on the verdict and the defendant appeals, asserting that the plaintiff was a guest in the car and that the evidence was insufficient to convict the defendant of gross negligence.Code§ 8-646.1.

The plaintiff files a motion to dismiss the appeal for the failure of the defendant to designate the parts of the record to be printed as required by Rule 5:1,§ 6, of the Rules of Court.As we have said several times, the intent and purpose of this Rule is to have printed all that is germane to the assignments of error.Bonich v. Waite, 194 Va. 374, 73 S.E.2d 389;Farrow v. Commonwealth, 197 Va. 353, 357, 89 S.E.2d 312, 315;DeMott v. DeMott, 198 Va. 22, 92 S.E.2d 342;Whitlow v. Grubb, 198 Va. 274, 93 S.E.2d 134.See also 'Appellate Procedure in Virginia Underthe Rules of Court' by Aubrey Russell Bowles, Jr., 44 Va.LawRev. 475, 484.

Specifically we have said: 'The appellant who asks us to set aside a finding of the trial court on the ground that it is not sustained by the evidence has the primary responsibility of designating all of the evidence which is necessary and material for us to determine that issue. 'DeMott v. DeMott, supra, 198 Va. at 24, 92 S.E.2d at 343.

The present appellant did not fairly perform his duty in that respect.He omitted from his designation testimony that was material to the issue which he asks us to decide.The parts he omitted were not helpful to him, but in asserting that the evidence did not support the verdict it was his duty to put into the printed record the material parts of that evidence.His failure did not in this instance however result in an inadequate printed record.Appellee's counsel exercised his right under the same Rule to make additional designations and all the material evidence is before us in the printed record.The motion to dismiss the appeal is overruled.

The material evidence with the conflicts in it settled in favor of the plaintiff by the jury's verdict presented the following case:

The plaintiff, Mrs. Womack, was employed in a drug store in Norfolk and in off hours worked for a private detective, for whom the defendant Jenkins also did some part-time work.Their acquaintance prior to the accident had been limited to the few times they had been on cases together.The plaintiff could drive a car but did not know how to park and had no driver's license.On Sunday, September 8, 1957, the defendant called the plaintiff and inquired whether she would like to go out and try to learn to park so she could get a license.She replied that she would and she got into his car at a designated place and they started out toward the new police headquarters on Tidewater Drive.

They crossed a bridge and entered upon Jamestown Crescent, a street which enters Hampton Boulevard on a slight curve to the right in a northerly direction.Hampton Boulevard is a four-lane highway running north and south, and Jamestown Crescent, which is a two-way street, enters it from the east.At the intersection is a traffic light designed to regulate the northbound traffic on Hampton Boulevard.On Jamestown Crescent near the intersection was a traffic sign 'Merging Traffic.'Soon after they crossed the bridge the defendant remarked to the plaintiff, 'There is a car following awfully close to us. 'The plaintiff turned around and saw the car.She said the defendant at that time was driving between 30 and 35 miles an hour.As they approached the intersection she saw the light on Hampton Boulevard change to caution.She knew that the defendant was not supposed to stop at the intersection but to proceed slowly and with caution.She did not tell the defendant about that because he began to slow down and she thought he was going to stop.But he did not, she said, 'He just speeded up and kept going.Then all of a sudden he stopped fast. 'She said he did not slow down too much and that after he speeded up she guessed he was back up to the speed he was going before he began to slow down.

When the defendant suddenly put his brakes on and stopped it threw her forward and by the time she got back to the seat the car that was following struck the defendant's car in the back and threw her forward again, causing her the injuries for which she sued.

The accident happened about 12:45 p.m.She testified that it was a fair day and she could see the traffic light clearly from her seat in the car; that as they approached the intersection the light changed from caution to red, and it was red when the defendant came to a stop.There was no reason, she said, why the defendant could not have seen the caution light as she did if he had been looking.

She said the defendant gave her no warning of his intention to stop.After the accident she stated that the defendant gave a hand signal before he stopped, but she made that statement, she said, because the defendant told her to do so and she did not in fact see him do that.

A police officer testified that the traffic light on Hampton Boulevard was not supposed to affect the flow of traffic on Jamestown Crescent.The light, he said, had a protective shield and from Jamestown Crescent 'you can catch a portion of the light. 'The defendant told him he was driving at about 20 miles an hour and as he came to the intersection he became confused at the traffic light...