Judy v. Doyle

• Decision Date: 16 June 1921
• Citation: 108 S.E. 6
• Parties: JUDY et al. v. DOYLE.
• Court: Virginia Supreme Court

108 S.E. 6

JUDY et al.

v.DOYLE.

Supreme Court of Appeals of Virginia.

June 16, 1921.

Error to Corporation Court of Fredericksburg.

Action by John M. Doyle, Jr., by his next friend, against A. H. Judy and another. Judgment for plaintiff, and defendants bring error. Affirmed.

F. M. Chichester and A. T. Embrey, both of Fredericksburg, for plaintiffs in error.

Wm. W. Butzner and C. O'Conor Goolrick, both of Fredericksburg, for defendant in error.

SAUNDERS, J. This action was brought by the defendant in error, an infant under the age of 12 years, suing by his next friend, against the plaintiffs in error, to recover damages for an injury to the right arm of the plaintiff, alleged to be due to the negligence of the defendants.

The trial resulted in a verdict for the plaintiff for $7,542.85, upon which the judgment under review was rendered. The pertinent facts, and the circumstances under which the injury complained of was suffered, are as follows:

The appellants, A. H. Judy and W. G. Keckler (defendants in the trial court), operated a farm in Stafford county, under a partnership arrangement. In the discharge of certain duties in connection with the farming operations, W. G. Keckler came to Fredericksburg, on August 23, 1919, in a Ford autotruck. While in town, he purchased for the use of the farm three mowing machine blades, which he placed in the body of the truck. Two of these blades were 65 inches long, and the third one 77 inches long.

A mowing machine blade, according to the description given, is a piece of tough steel from 65 to 77 inches, or more, in length, about five-sixteenths of an inch thick, and seven-eighths of an inch wide. In this strip holes are drilled, and sections riveted thereon. These sections have one blunt end, are about 3 inches wide at the base, and are in the shape of the following figure:

The edges of the sections are beveled, and ground very sharp. Ordinarily about 24 of these sections are riveted on a 6-foot blade.

"At the end of the blade that is constructed to fit into the pitman is a ball, part of the ball and socket joint; the socket being on the end of the pitman." This end of the blade is called the knuckle end.

According to the testimony, the defendant Keckler placed these blades in his truck body, piled the one on the other, with the sharp edges of the sections exposed. The knuckle ends were in the forward left-hand corner of the body, and the other ends in the rear right-hand corner; "the blades being thus diagonally across the said body, and projecting from the rear." The extent of this projection is stated in varying terms. Averaging these statements, it may be said with substantial accuracy that the blades projected from 18 to 20 inches beyond the tail end of the truck body. The box constituting the rear end of the truck was 54 inches long, 34 inches wide, and 5 inches deep; the bottom of this body being 33 inches from the ground, and projecting backward over the rear axle 28 inches. Having loaded the loose blades upon his truck in the fashion described, Keckler proceeded by various streets to Caroline street, also called Main street, and the principal street of the city. He proceeded southward along this street to about the middle of the block, and parked his car at an angle of about 45 degrees to the curb line, with his front wheels against the curb. The relative location to the curbing of the truck and of the projecting blade ends, with their sharp cutting edges facing the street, are given in the following figure, which is merely illustrative, and not undertaken to be drawn to scale:

The truck was parked between two cars, "quite a large one being on the upper side of the truck, which, to one corning down the street, obscured in part the view of the truck." There was very little space between the truck and the car next down the street, and about 3 feet between it and the car next above, and up the street. These cars were parked at about the same angle as the Ford truck.

On the left side of Caroline street—that is, the east side—and opposite from and slightly below the place where the truck was parked, was a pile of brick and other debris in the street. A Ford sedan was parked near this rubbish heap, and extending into the street further than it should have done. This rubbish heap and sedan so obtruded upon thestreet that when ears were parked on the opposing side, as was the case at the time of the accident, the street was reduced to a mere alleyway for a short distance, so much narrowed, indeed, that in this "throttle" two cars could not pass.

Having parked his car as described supra, Mr. Keckler left the same unattended, and went off to purchase a pair of shoes. Coming, now, to the immediate circumstances of the accident, and the conduct of the plaintiff, it appears that the latter was riding a bicycle slowly and carefully down Main, or Caroline, street. Behind the boy was a motor car, also going down Main street. In front of the boy, coming up Main street, and approaching the "throttle, " were two motor cars. The front car stopped in, or just at the mouth of, the "throttle." This action caused the second car to turn slightly to the left (or west) side of the street, and as it continued to move forward, it completely closed the narrow passage left for moving cars. Thus the boy was caught between the cars in front, and the one approaching in his rear. In his search for safety he swerved to the right, riding close to the cars parked on that side of the street. When he came to the opening between the defendant's truck and the car north of it, he headed in for the sidewalk, ran into the projecting blades, and was badly cut in the right arm. Dr. A. J. Wilson, a veterinary surgeon, who saw the accident, describes it, and the attendant circumstances, as follows:

"I was looking at the time up Main street for some reason, when this boy came riding down the street on a bicycle, and it appears the way was blocked, so that the boy could not get through, and I saw him turn in, go towards the sidewalk with his bicycle, and strike these blades. * * *

"Q. What caused young Doyle to turn in towards the car with the blades in it?

"A. The street was blocked; he couldn't help himself; it was the only salvation he had; he thought there was an opening he could get through to the sidewalk. The street was blocked with another team, or an automobile, I couldn't say which. * * *

"Q. And you say he turned to the right to avoid the approaching car?

"A. Yes, sir. * * *

"Q. Did you see the boy when he turned in to escape this jam? "A. Yes, sir. "Q. At what speed?

"A. Not very fast, just creeping, moseying along. * * *

"Q. How far was the car from him—that is, the car going in the opposite direction—when he turned in?

"A. Right about behind me—might have been down Main a little; it was right close to me.

"Q. How many car lengths from him?

"A. About one car length. * * *

"Q. Tell the jury the exact position of the boy and his wheel at the time he was cut.

"A. He turned in, these blades sticking out in this way (indicating) extending behind the car, and came in contact with the blades when he turned, and of course, sticking that way, the impaction with these blades severed the arteries in the boy's arm. * * *

"Q. From what you saw, please state whether or not young Doyle lost control of his machine before he struck the blades.

"A. I don't think so."

Henry Satterwhite, another eyewitness of the accident, testifies in part as follows:

"Q. Just before he came in contact with the blades, in which direction was he looking, and what did he appear to be looking at?

"A. At the cars that were coming towards him, and down Main street.

"Q. And then what did he do?

"A. He got up close to the car; he was pretty close to the cars that were parked on the right-hand side of Main street.

"Q. What did he do just before he came in contact with the blades?

"A. He must have put on his brakes; he slid down and lurched into the car. * * *

"Q. Did he lose control of his wheel, as far as you were able to observe?

"A. I don't think he did. He stopped it because he was in a close place. I am sure he did not lose control of his wheel, because when he stopped his wheel he lurched to the right side, and went to put his feet down and catch himself.

"Q. And it was then he came in contact with the blades?

"A. Yes, sir.

"Cross-Examination.

* * * * ***

"Q. Could the little man have seen these blades, if he had been observant?

"A. I don't think anybody would have noticed them, if they had been in the place he was in.

"Q. What was that?

"A. Because, when you are in close, you are not looking on the right-hand side; you are looking out at what is in front, and trying to get out of the way.

"Q. His attention, then, seems to have been occupied with the oncoming vehicle, and not with the truck?

"A. No, sir; I do not think he could have paid any attention to the standing truck with the car coming right towards him.

"Q. When his wheel stopped, you say it kind of turned to the right?

"A. It lurched to the right.

"Q. That is, the whole wheel would have fallen to the ground, if he had not been on it?

"A. It would have fallen; but, when anybody goes to stop a wheel, they always lurch to the right, and put their foot down and catch themselves."

Dr. C. Mason Smith, describing the injuries suffered by the plaintiff, states that the large artery in the arm, called the brachial artery, and all the veins in the front of the arm, and the nerves, were severed; also the biceps muscle and tendon. In the opinion of Dr. S. L. Scott, a witness for the plaintiff, the boy 5s incapacitated for physical usefulness, conservatively speaking, 60 per cent.

The boy's right forearm is smaller than the left, the hand and fingers of that arm are smaller, the arm itself a little crooked, and the second, third, fourth, and fifth fingers of the hand are contracted.

The defendants filed six bills of exceptions in the progress of the trial. The first three exceptions...