Johnson v. Kellam

• Decision Date: 14 June 1934
• Citation: 175 S.E. 634
• Court: Virginia Supreme Court
• Parties: JOHNSON. v. KELLAM.

175 S.E. 634

JOHNSON.

v.KELLAM.

Supreme Court of Appeals of Virginia.

June 14, 1934.

Rehearing Denied Sept. 25, 1934.

EPES, J., dissenting in part.

Appeal from Circuit Court, Princess Anne County.

Action by R. J. Johnson against Edwin Kellam. From a judgment for plaintiff, plaintiff appeals on the ground of insufficiency of damages awarded.

Reversed and remanded for new trial.

Argued before HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

M. Earl Woodhouse and W. R. Ashburn, both of Norfolk, for appellant.

I. W. Jacobs and W. H. Venable, both of Norfolk, for appellee.

GREGORY, Justice.

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, 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 from an insurance company by reason of a certain accident policy. For that reason, the plaintiff claims that his damages were minimized tothat 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 daytime 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 eyewitnesses.

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 expenses, including doctors', nurses' and hospital bills, amounted to more than $1,000. The repairs to his automobile cost him $181.75.

The defendant's explanation of the accident was different from that testified to by the plaintiff, but the physical facts strongly corroborated the plaintiff's version. In any event, the case was properly submitted to the jury.

In overruling the defendant's motion to strike the evidence of the plaintiff, the trial court in substance stated that the case was one peculiarly for a jury to decide; that the testimony of the plaintiff was that he was driving on his side of the road while the defendant was driving in the center of the road; that, if the plaintiff's testimony were true, he had a right to assume that the defendant would go to his own side of the road and get away from the danger which he himself had created; and that the plaintiff had the right to continue in this assumption until the fact became manifest that the defendant was not going to get over on his side of the road.

The conclusions of the trial court were correct, for section 2151 (112) of the 1932 Supplement of the Code provides in part that "upon all highways of sufficient width the driver of a vehicle shall drive the same upon the right half of the highway, * * *" and section 2154 (115) of the same Code provides that: "Drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other, as nearly as possible, one-half of the main traveled portion of the roadway." In construing these sections prior to the 1932 amendment, in a case where the facts were similar in many respects, this court held in Whipple v. Booth, 155 Va. 413, 154 S. E. 545, 546, that:

"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. Vartanian, The Law of Automobiles, § 69. The plaintiff here had the right, under the circumstances, to presumethat the defendant would move over to his side of the street, until she saw that he was not going to turn to his right side. Then it became her duty to exercise ordinary care to avoid the collision, and in the performance of this duty she turned still further to her light and partially off of the street to avoid him."

According to the plaintiff in the instant case, he turned his car still further to his right and into the ditch on his side in order to avoid the defendant.

Under such circumstances, it is obvious that a jury question was presented, and, under well-settled principles, the verdict has concluded adversely to the defendant the issues of the actionable negligence of the defendant and the contributory negligence of the plaintiff. This being true, it follows that the verdict and judgment must stand unless there was some prejudicial error of law committed by the trial court.

Both parties are asserting that prejudicial error was committed. The defendant, by cross-assignment of error, claimed that the verdict was unsupported by the evidence. We have already disposed of that assignment. He also contends that the instructions were improper; especially instruction 4. On the other hand, the plaintiff by his assignment contends that the judgment should be reversed and the case remanded on the question of the amount of the damages alone, for the reason that the court improperly admitted evidence that the plaintiff had received the proceeds of an accident insurance policy by reason of his injuries.

Of the defendant's cross-assignments, we deem it necessary to discuss...