Johnson v. Kellam

• Decision Date: 14 June 1934
• Citation: 162 Va. 757
• Court: Virginia Supreme Court
• Parties: R. J. JOHNSON v. EDWIN KELLAM.

Page 757

162 Va. 757

R. J. JOHNSON v. EDWIN KELLAM.

Supreme Court of Virginia, Wytheville.

June 14, 1934.

Present, Holt, Epes, Hudgins, Gregory, Browning and Chinn, JJ.

1. AUTOMOBILES — Collision — Driving on Wrong Side of Road — Negligence a Question for Jury — Case at Bar. — In the instant case, which was an action for damages arising out of a collision between automobiles driven by the parties, plaintiff's evidence showed that the collision occurred on a straight stretch of State highway; that plaintiff was driving on the right side of the highway, and that defendant came from the opposite direction driving in the center of the road. Plaintiff sounded his horn but defendant did not alter his course and plaintiff drove further to his right. Defendant drove diagonally across the road and struck plaintiff's car near the left door causing plaintiff serious injury and badly damaging his car. Defendant's explanation differed from that of plaintiff but plaintiff's version was corroborated by the physicial facts.

Held: That the conclusion of the trial court that the case was one peculiarly for a jury to decide was correct.

2. AUTOMOBILES — Collision — Driving on Wrong Side of Road — Presumption that One Driving on Wrong side of Road Will Move over to Right Side. — The driver of an automobile along a public highway, who sees another automobile approaching on the wrong side of the road, has the right to assume that the driver of such automobile will observe the law and seasonably move over to his right side so as to pass safely. A driver has a right to this presumption until he sees that such other driver is not going to turn to his right side. It then becomes his duty to exercise ordinary care to avoid a collision. 1932 Supplement to Code of 1930, sections 2154(112), 2154(115).

3. AUTOMOBILES — Questions of Law and Fact — Negligence and Contributory Negligence Determined by Verdict. — Where in a case like the instant one, which was an action for damages arising out of a collision between automobiles driven by the parties, it is obvious that under the circumstances a jury question was presented, a verdict for the plaintiff concludes adversely to the defendant the issues of the actionable negligence of the defendant and the contributory negligence of the plaintiff, and such verdict and judgment must stand on appeal unless there was some prejudicial error of law committed by the trial court.

4. AUTOMOBILES — Driving on Wrong Side of Road — Instructions — Instruction Applicable to the Facts Not Erroneous — Case at Bar. — In the instant case, which was an action for damages arising out of a collision between the automobiles of plaintiff and defendant, the trial court instructed the jury that if they believed from the evidence that the plaintiff operated his automobile at a reasonable rate of speed, and in approaching the defendant's car drove upon the right half of the highway, then he was not guilty of any negligence which caused or contributed to the collision. The collision occurred on a straight road, the plaintiff was driving on his side of the road while defendant was driving in the middle, and as the cars approached plaintiff drove still further to his side and on the shoulder of the road. Defendant drove diagonally across the road and struck plaintiff's car.

Held: That the instruction standing alone, as a general proposition, might be erroneous, but, when applied to the peculiar facts of this case and considered along with all of the other instructions, the trial court did not commit reversible error in granting it.

5. DAMAGES — Insurance — Damages for Negligence Not Reduced by Reason of Plaintiff Having Insurance. — The law seems quite well settled that damages, recoverable for personal injuries inflicted through the negligence of another, are not to be reduced by reason of the fact that the injured party has been partly compensated for his loss by insurance which he has procured and for which he has paid.

6. DAMAGES — Insurance — Evidence as to Insurance Compensation Inadmissible — Case at Bar. — In an action to recover damages for injuries suffered by plaintiff in a collision between his automobile and that of defendant, the admission of evidence showing that plaintiff was paid a sum of money under an insurance policy held by him on account of his injuries is erroneous and prejudicial to his rights.

7. APPEAL AND ERROR. — Exceptions and Objections — Exception Properly Saved Where the Grounds of the Exception Are Apparent from the Question. — The plaintiff has properly saved his exception, in accordance with Rule 22 of the Supreme Court of Appeals, to a ruling of the trial court admitting evidence, when the ground of the objection and exception which were timely interposed was perfectly apparent from the form and subject-matter of the question, and counsel and court were fully aware of its significance as shown by the action of the trial court in noting the purpose of the evidence from its own observation.

8. APPEAL AND ERROR — New Trial — Remanding Case for the Purpose of Ascertaining the True Amount of Damages Alone — Case at Bar. — Where in an action to recover damages for injuries sustained by plaintiff in a collision between the automobiles of plaintiff and defendant, the judgment of the trial court is reversed for the sole reason that the court admitted evidence regarding the insurance plaintiff carried and the amount he received thereunder by reason of his injuries, the issues of the negligence of defendant and the alleged contributory negligence of plaintiff having been concluded by the verdict adversely to defendant, he is not entitled to a new trial upon them, but, inasmuch as the prejudicial error in admitting the improper evidence in all probability influenced the jury in fixing the amount to be awarded plaintiff, the Supreme Court of Appeals, in the exercise of its discretion under Code of 1930, section 6365, will remand the case for a new trial, which shall be limited to the sole question of the proper amount of damages to be awarded.

Error to a judgment of the Circuit Court of Princess Anne county, in an action for damages arising from an automobile accident. Plaintiff assigns error and defendant assigns cross-error.

The opinion states the case.

M. Earl Woodhouse and W. R. Ashburn, for the plaintiff in error.

I. W. Jacobs and Venable, Miller, Pilcher & Parsons, for the defendant in error.

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

Johnson, who was the plaintiff in the court below, instituted his action for damages growing out of a collision between an automobile which he was driving and one which was being driven by Kellam, who was the defendant. The jury returned a verdict in favor of the plaintiff for $2,250.00, which was sustained by the trial court, and judgment was rendered thereon.

Johnson will be referred to as the plaintiff and Kellam as the defendant.

The trial court permitted the defendant to show that the plaintiff had received, on account of his injuries, some $650.00 from an insurance company by reason of a certain accident policy. For that reason, the plaintiff claims that his damages were minimized to that extent, and that to permit evidence of such a collateral matter was prejudicial error.

On the other hand the defendant assigns cross-error and contends that the plaintiff was guilty of such contributory negligence as barred any recovery and that the court misdirected the jury.

The verdict of the jury in favor of the plaintiff established the actionable negligence of the defendant, Kellam. It also established that the plaintiff was not guilty of any contributory negligence which barred his recovery. If the verdict is sustained by the evidence, these two issues must be resolved against the defendant.

From the standpoint of the plaintiff the evidence discloses that the collision occurred in the day-time upon a State highway which was straight and twenty-two feet wide, with smooth shoulders five feet wide. It had rained just prior to the time of the collision and the road was wet. The highway runs easterly and westerly. The plaintiff and the defendant were the only eye-witnesses.

The plaintiff was driving easterly on his right side at thirty miles per hour while the defendant was driving rapidly in a westerly direction in the middle of the road. The defendant's car was observed by the plaintiff occupying the middle of the road and while a safe distance away the plaintiff sounded his horn to warn the defendant to move over to his proper side, but the defendant did not heed the warning and continued in a straight course in the middle of the road. When they were some sixty yards apart the plaintiff drove to his extreme right side and the defendant drove diagonally over on plaintiff's side and into plaintiff's car. The plaintiff's car was struck near the left door, close to where he was sitting. The front of the defendant's car was damaged from the impact. After the collision both automobiles were resting over on plaintiff's side of the road in the ditch beyond the shoulder. They were then about twenty-five feet apart.

When the defendant's car was moved by the wrecking crew it was observed that the left front wheel was locked and after the plaintiff was taken to the hospital, according to his testimony, the defendant said that he "thought his brakes locked and that caused his car to go off."

From the damage to the cars, as observed by those who saw them immediately after the collision, the conclusion is inescapable that the front of the defendant's car jammed into the left side of the plaintiff's car.

The defendant did not deny that he was driving in the center of the road. He said: "I presume I was driving pretty near the center of the road, and so was he." * * * In other particulars his testimony was in conflict with that of the plaintiff.

The plaintiff sustained painful and permanent injuries and his automobile was considerably damaged. His...