Jones v. Hanbury

• Decision Date: 16 June 1932
• Citation: 164 S.E. 545
• Parties: JONES . v. .HANBURY.
• Court: Virginia Supreme Court

164 S.E. 545

JONES .

v..HANBURY.

Supreme Court of Appeals of Virginia.

June 16, 1932.

Error to Court of Law and Chancery of City of Norfolk.

Action by Mildred Catherine Hanbury against Harvey L. Jones. Judgment for plaintiff, and defendant brings error.

Reversed and rendered.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and GREGORY, JJ.

Foreman, Pender, Parker & Dyer, of Norfolk, for plaintiff in error.

Russell T. Bradford and Jos. H. Bishop, Jr., both of Norfolk, for defendant in error.

EPES, J.

This is an action brought by notice of motion for judgment by Miss Mildred Hanbury against Harvey L. Jones to recover damages for personal injuries received in an automobile collision which she alleges was caused by his negligence. The negligence charged is thus stated in her bill of particulars:

"Negligence is claimed against defendant, who put plaintiff in control of his automobile, and while she * * * was operating it, in a careful and precautious manner, * * * the defendant wrongfully and negligently took the steering wheel and the operation of said car from her and caused the accident complained of."

The defendant, in effect, pleaded the general issue and filed a plea of contributory negligence.

At the conclusion of the plaintiff's evidence in chief, the defendant moved the court to strike out all the plaintiff's evidence because there was no evidence of negligence upon the part of the defendant. The court overruled the motion, saying: "I think probably the jury will find it, but I will let the jury pass on it."

The defendant then introduced his evidence; and the case was submitted to a jury, which returned a verdict for the plaintiff for $4,500, upon which the court entered judgment. To this judgment a writ of error has been granted the defendant.

The only two assignments of error are that the court erred: (1) In refusing to sustain defendant's motion to strike out all the plaintiff's evidence; and (2) in refusing to set aside the verdict as contrary to the law and evidence.

Where material facts and circumstances of a case lie peculiarly within the knowledge of the defendant, or peculiarly within the knowledge of both the plaintiff and the defendant, it is a very drastic proceeding to strike out all the plaintiff's evidence on a motion made at the conclusion of the plaintiff's evidence in chief, before the defendant has testified. A motion to strike out made under such circumstances should not be sustained unless it is very plain that the court would be compelled to set aside a verdict for the plaintiff upon a consideration of the evidence strictly as upon a demurrer to the evidence, and in the light of the fact that the defendant has seen fit not to testify and subject himself to cross-examination. Where a motion to strike out is made after all the evidence for both parties has been introduced or upon a motion to set aside a verdict, a somewhat more liberal rule is sometimes applied for the consideration of the evidence in passing upon the motion; but in cases such as this (where the motion to strike out is made at the conclusion of the plaintiff's evidence in chief), the court will rigidly apply the rule applicable to the consideration of evidence upon a demurrer to the evidence.

A motion to strike out all the evidence of the plaintiff, made at the conclusion of his evidence in chief, is not in all respects the equivalent to a demurrer to the evidence. See Green v. Smith, 153 Va. 675, 679, 680, 151 S. E. 282. Even where the trial court would have been warranted in sustaining the motion at that juncture, it does not follow that a judgment for the plaintiff will be reversed, if the court overrules the motion. If the cause is thereafter proceeded with to what appears to be a fair development of the evidence for both parties, and upon a consideration of the whole evidence the verdict of the jury in favor of the plaintiff is plainly right, this court will not reverse a judgment for the plaintiff and order a new trial. Section 6365, Code Va. 1919. If the defendant desires to finally conclude the case at that juncture at all events, he should demur to the evidence instead of moving to strike it out.

For these reasons we deem it unnecessary to pass upon the motion to strike out and shall consider only the motion to set aside the verdict.

In stating and considering the evidence the following terms will be used with these meanings: North, toward Washington; south, toward Richmond; right and left, the right and left hand side going north.

The accident happened about 11:30 a. m., February 7, 1931, on the Richmond-Washington highway, a few miles north of Ladysmith. Jones and Miss Hanbury were traveling north in a Ford sedan belonging to Jones. The Packard sedan which collided with the Jones car was going south. Jones was making a business trip from Norfolk to Washington, and Miss Hanbury was accompanying him as his guest. Soon after they left Ashland, Jones requested her to relieve him at the wheel, which she did. The collision occurred about twenty minutes after she took the wheel, and (to use her language) "I guess about three or four seconds" after Jones grabbed the wheel.

With reference to her competency as a driver, Miss Hanbury says: "We don't have a car of our own, but I have been driving about two or three years." Jones says that she had driven his car on prior occasions when she was with him, and that he considered her a competent driver.

Miss Hanbury, J. M. Leet, and Rev. O. D. Poythress testified on behalf of the plaintiff. His own testimony and that of W. J. B. Hall was introduced by the defendant. These are the only witnesses whose testimony has any bearing on the collision and the cause thereof. Hall's testimony was in the form of a deposition taken by the plaintiff, which the defendant read when the plaintiff failed to do so. He was an automobile mechanic who lived near the scene of the accident and reached there a short time after it occurred. Poythress and Leet made their examinations of the scene of the accident on April 23 and May 31, 1931, respectively. Miss Hanbury was present when Leet made his examination, and pointed out to him the point at which the collision occurred.

The highway, which is straight for some distance on both sides of the point of the collision, is a cement roadway 18 feet wide, with a dirt shoulder on each side. The shoulder on the left was 11 feet from the edge of the cement to the bottom of the ditch, and that on the right 10 feet. At the time of the accident these shoulders were in such condition that an automobile could be driven on them. The drop of the left shoulder from theedge of the concrete was as follows: At 3 feet 1³/₄ Inches; at 6 feet, 5 inches; at 9 feet, 10 inches. The bottom of the ditch was from 16 to 24 inches below the level of the edge of the cement.

The only testimony with reference to the width of an ordinary automobile is that it is 56 inches wide; but it is a matter of common knowledge that this is the width of the tread and not the overall width including fenders. Poythress and Hall both testified that three automobiles could pass abreast at the point of collision, provided one of them got off on the shoulder.

The point of collision was on the north side of a hill, which has a long gradual slope from the foot to the crest on both sides. The photographs show that the center of the road over the crest of the hill is marked by a white painted line.

Miss Hanbury does not testify as to the distance north of the crest that the collision occurred; but her witness J. M. Leet gives the following testimony bearing upon this point: "The accident happened just beyond the crest of a hill * * *. I stood 80 steps (south) from what they told me was the scene of the accident and saw cars all the way down" the north side of the hill. "Did the 80 steps take you past the top of the hill? Yes, sir, just past." The only other testimony on this point is that of Hall. On direct examination he says the collision occurred "130 steps" north of the crest of the hill. On cross-examination he says it occurred" about 200 steps" beyond "the top of the hill, " and about three-fourths of the distance from "the bottom of the hill towards the north."

With reference to the ability of a person approaching the scene of the accident from the south to see an automobile approaching from the north Leet testifies as follows: Standing in the road 80 steps south of the point of collision he could see "the top" of the hill, could see "2 or 3 inches" of the top of an automobile on the north side of the hill which was at a point he estimated (without having stepped it off or measured it) to be about 200 yards north of where he was standing, and about 100 yards north of the point of collision. He also says, standing at the point of collision, "I could see the tops of the cars all the time" looking both ways; "I don't think" there was any point "where approaching ears dropped entirely out of sight."

Hall testifies on this point as follows: Standing at the scene of the accident you can see a car approaching from the south for "150 steps, " but cannot see "a small car" at the southern foot of the hill. Standing "130 steps" south of the scene of the accident you can see a car approaching from the north for "about 200 steps." Standing at "a point 100 or so steps north of the point of the accident" and looking south, cars approaching from the south went out of view and remained out of view "about 5 seconds" before they became visible again over the top of the hill.

The observations of Leet and Hall were made while standing on the ground. There is no evidence as to the relative elevation of the eyes of Leet or Hall when standing and the eyes of Miss Hanbury when seated in the Ford car. To correlate their testimony as to their ability to see objects over the crest of the hill with that of Miss Hanbury recourse must be had to common knowledge. It may be taken to be a matter of common knowledge that...