Jones v. Aluminum Window & Door Corp.

• Decision Date: 12 October 1959
• Docket Number: No. 4976,4976
• Citation: Jones v. Aluminum Window & Door Corp., 110 S.E.2d 531, 201 Va. 283 (1959)
• Court: Virginia Supreme Court
• Parties: CLINTON S. JONES, AN INFANT, ETC. v. ALUMINUM WINDOW AND DOOR CORPORATION, ET AL. Record

Page 531

110 S.E.2d 531

201 Va. 283

CLINTON S. JONES, AN INFANT, ETC. v. ALUMINUM WINDOW AND DOOR CORPORATION, ET AL.

Record No. 4976.

Supreme Court of Appeals of Virginia

October 12, 1959.

George E. Allen, Sr. and Charles E. Maurice (Allen, Allen, Allen & Allen, on brief), for the plaintiff in error.

Alexander H. Sands, Jr. (Alexander H. Sands; Sands, Marks & Sands, on brief), for the defendants in error.

JUDGE: MILLER

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

Clinton S. Jones, twelve years of age, was severely injured when a bicycle that he was riding along U.S. route 60 in Chesterfield county, Virginia, was struck by an automobile operated by Marvin A. Fellers, agent of Aluminum Window and Door Corporation.

The action for damages instituted by the infant through Roger L. Jones, his father and next friend, against Fellers and the corporation resulted in a verdict of $125,000 against both defendants. In ruling upon the several motions made after verdict, the court determined that the award was excessive and required plaintiff to remit $65,000. The effect of this was to put plaintiff upon terms to accept $60,000, and judgment was entered for that sum.

The litigants will be referred to at times as plaintiff and defendants in accordance with their positions in the trial court.

Plaintiff appealed; the court's action which required him to remit $65,000 of the verdict, and its entry of final judgment for $60,000 are assigned as error.

Defendants assigned several cross-errors; those relied upon may be summarized and stated as follows:

1) The evidence conclusively proves that plaintiff was guilty of contributory negligence, and the court erred by refusing to vacate the verdict and enter final judgment for defendants;

2) The court erred in giving instruction 5 under the doctrine of last clear chance, and in giving instructions 3 and 4 which concern automobile headlights and the care required of a motorist who is or should be apprised of the presence of a child near the highway.

Where the accident happened route 60 extends in an easterly and westerly direction. It is a dual highway divided by an island 39 feet wide. The eastbound and westbound hard-surfaced roadways are 22 feet wide, and each is divided into two traffic lanes.

On February 5, 1957, between 6 and 7 p.m., when plaintiff was riding his bicycle in an easterly direction along route 60 a few miles west of Richmond where there is a slight upgrade in the highway, he was struck by defendant's car which was being driven in the same direction. Visibility at the time was poor, the night misty, drizzling, and very dark, and the child was dressed in dark clothing.

According to plaintiff's testimony, he was riding his bicycle, equipped with burning lights and a reflector, along the right shoulder 'about a half a foot or foot' from the hard surface when he was struck by the car. He said that he rode on the shoulder to be out of the way of cars, made no 'turn at all' before the impact, but was riding straight and was hit while he 'was still on the shoulder.'

The boy's father and the State trooper, who came to the scene soon after the mishap, testified that there were bicycle tire marks for 50 feet in a straight line along the shoulder of the road about a foot from the hard surface up to where they ended, and according to the father, the tire tracks never entered upon the hard surface. The trooper said that the four-foot shoulder was muddy and the east end of the bycycle tire tracks made 'just a slight curve toward the highway * * *. ' That evening he could find no marks on the hard surface, but when he went back 'a day or two later' he found light scratch marks on the hard surface about a foot from its south edge 'in the same approximate vicinity' of where the bicycle tire marks ended. No automobile tire tracks were seen by him on the shoulder in the immediate vicinity of the bicycle tracks.

The front wheel of the bicycle was broken off and found lying on the south shoulder about five or six feet east of the east end of the tire marks. The remainder of the bicycle was lying on the same shoulder about 15 to 20 feet behind defendants' automobile, and the greater portion of that vehicle was also on the south shoulder off the hard surface.

Clinton's shoes had been knocked from his feet and were found, one in the ditch and the other in the field about 10 or 15 feet apart.

When Clinton's father examined the bicycle on Saturday before the accident, it was equipped with the lights required by § 46-268 and § 46-270, Code 1950, ¹ and he found the lights and reflector working properly. The day after the accident when he looked at it, the wires of the rear light on the left side of the axle of the rear wheel were disconnected, but the wires to the front light were intact. He reconnected the wires, and the rear light operated.

Defendant, called as an adverse witness, said that he could not 'say for sure' how wide the grass plot was between the two sections of route 60, but 'I would imagine it is about 12 to 15 feet. ' He then testified that when the accident happened, he was traveling along route 60 two to three feet from the right edge of the hard surface at a speed of about 45 miles an hour; as the traffic had been rather heavy in the eastbound and westbound lanes, he had his light on low beam. However, he admitted that at the time of the accident there were no cars approaching immediately from either direction although after the impact the traffic was again fairly heavy. An automobile speed limit of 55 miles an hour is permissive in the area where the collision occurred.

Fellers described the circumstances under which he first saw plaintiff and the location and movement of the bicycle as follows:

'Q. You were traveling in the direction of Richmond and away from Midlothian. In what direction was the bicycle traveling?

'A. Same direction when I saw it -- when I saw it it was coming onto the highway.

'Q. How far was it from you when you first saw it?

'A. Very close. I would say approximately 30 feet.

* * *

'Q. Did you see him while he was riding along the shoulder?

'A. When I first saw him he was on a slight angle coming into the highway standing on his bicycle. He was not sitting on the seat, he was in a standing position.

'Q. Riding going along the highway?

'A. Well, it happened so fast in 30 feet you don't have time to do much. In other words, when I saw him he was on this angle (indicating with hands), and I did everything I could to miss him in the time that I had.

'Q. Was he on the edge of the highway when you first saw him or not?

'A. He was up into the driving lane on an angle coming onto the highway when I first saw him.

'Q. Had he gotten both wheels on the highway, or one?

'A. Well, just like I said before, in 30 feet both wheels was on the highway when I hit him, of course, because when I first saw him he was coming onto the highway on an angle.

'Q. Just coming on the highway?

'A. That is right.

* * *

'Q. You didn't see him until you were within what distance of him?

'A. About 30 feet.

'Q. You recall answering interrogatories and saying that the distance that you saw him was from 20 to 30 feet?

'A. Well, I used a maximum figure there, from 20 to 30 feet. It is hard to determine exactly to the exact foot.

'Q. At any rate, you were so close that it was difficult for you to tell?

'A. That is right.

* * *

'Q. And what part of the bicycle did it strike?

'A. The rear wheel.

'Q. You were traveling how fast, did you say?

'A. Approximately 45.

'Q. You didn't see the boy in time to even apply your brakes, did you?

'A. That is right.

* * *

'Q. Along there that night as the road was at that time and with the brakes you had, and in good order, and the condition of the road, within what distance do you think you could have stopped if you had seen some object ahead of you in time to have applied your brakes?

'A. Well, I had new tires on the car. It should have been able to stop, which I did after I struck him, in about 25 to 30 feet.

'Q. Do you think if you could have seen him in time you could have stopped within 20 to 30 feet?

'A. 20 to 50 feet.

'Q. If you could have seen him in time could you have turned to the left?

'A. Oh, yes, I am sure I could have if I had seen him in time.

'Q. Did you turn to the left?

'A. Like I said, I didn't see him in time to actually do anything.

'Q. And if you had seen him in time you could have blown your horn?

'A. That is true.

'Q. To warn him you were coming, but you didn't see him in time to blow your horn?

'A. That is right.

* * * 'Q. If you had seen this boy on the bicycle riding along on the the shoulder of the road, or on the edge of the hard surface, say within 75 or 100 feet, could you have avoided him?

'A. Sure I could have. All I had to do was cut about three inches or four inches to my left and I would have missed him.'

Defendant further said that because of the atmospheric conditions 'the visibility was cut approximately fifty per cent * * *'; he did not see any light on the bicycle, and his car never left the hard surface until after it struck the bicycle. Upon examination of his car the next morning, he observed a 'little round dent' in the front bumper about 7 inches from its right end, which appeared to have been made by a 'bolt or something.' He said 'that was the only part of the car that was touched.' He also testified that when he got out of his automobile he heard the boy crying and found him getting up out of the ditch on the south edge of the shoulder.

On the morning before the trial Fellers drove the same automobile to the scene to determine how far the extreme right end of the car bumper would extend over the shoulder when the right wheels of the car were on the edge of the hard surface. He testified that upon placing the car in this position, the bumper extended five inches over the shoulder.

Pictures of the bicycle disclose that the rear...