Kale v. Douthitt

• Decision Date: 22 January 1960
• Docket Number: No. 7933.,7933.
• Citation: 274 F.2d 476
• Parties: Ida M. KALE and Lester E. Kale, Appellants, v. Martin F. DOUTHITT, and Automatic Sprinkler Corporation of America, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

274 F.2d 476 (1960)

Ida M. KALE and Lester E. Kale, Appellants, v. Martin F. DOUTHITT, and Automatic Sprinkler Corporation of America, Appellees.

No. 7933.

United States Court of Appeals Fourth Circuit.

Argued October 23, 1959.

Decided January 22, 1960.

Israel Steingold, Richmond, Va. (Steingold & Steingold, Richmond, Va., on brief), for appellants.

M. Wallace Moncure, Jr., Richmond, Va. (Moncure & Cabell, Richmond, Va., on brief), for appellees.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and BUTLER, District Judge.

BUTLER, District Judge.

This action was brought by plaintiffs to recover damages for personal injuries sustained in the collision of two automobiles. At the conclusion of all the evidence, defendants renewed their motion for a directed verdict on the ground that there was not sufficient evidence of actionable negligence on the part of the defendants to be submitted to the jury. The motion was allowed, and the plaintiffs appealed.

The principal issues involved in this appeal are a question of last clear chance and also whether the testimony of an expert witness in reconstructing the accident and estimating the speed of the defendant's automobile prior to the collision was competent and of sufficient probative value to raise an issue for the jury.

The salient facts developed in the evidence are as follows:

A collision occurred on August 5, 1957, at 4:00 o'clock p. m., on U. S. Highway No. 301, in Caroline County, Virginia, about three and one-half miles north of Hanover Courthouse, between a 1954 Plymouth Sedan owned and operated by the plaintiff, Lester E. Kale, accompanied by his wife and co-plaintiff, Ida M. Kale, and a 1957 Chrysler Imperial Sedan owned and operated by the defendant, Martin F. Douthitt, acting within the scope of his employment as agent and employee of the defendant, Automatic Sprinkler Corporation of America.

The highway at the point of collision runs in a north-south direction. It is "rolling and hilly" and is straight for approximately twenty miles north and approximately one-quarter mile south. The highway was paved with asphalt 20 feet wide, with a broken white line down the center, separating the highway into two lanes 10 feet wide. The shoulders were constructed of small, loose gravel. The shoulder on the west was 12 feet 5 inches wide, and the shoulder on the east 11 feet 10 inches wide. On the east side of the road there was a dirt embankment 5 feet 8 inches from the edge of the shoulder. The speed limit was 55 miles an hour. The weather was clear; the surface of the road was dry, and the sun was shining.

The plaintiffs were severely injured and both suffered loss of memory as a result thereof for a short period prior to the accident and for about three days thereafter, and neither had any recollection of the accident.

There were only two eye-witnesses: the defendant Douthitt, and Billy Dean Massie, an occupant of the defendant's automobile. The evidence disclosed that the defendant Douthitt was travelling south and the plaintiffs were travelling north. Near the point of collision the road slopes downward between the crests of two hills forming a valley of sufficient depth that an automobile in the valley and an automobile 100 feet past the crest of the hill approaching from the north are not visible to the respective drivers.

As the defendant Douthitt, travelling on his proper side of the road, drove over the crest of the hill he saw the plaintiff's car 100 to 200 feet directly in front of him sliding sideways at an angle across the southbound lane in which he was travelling. The defendant immediately applied his brakes and pulled to the right, leaving skid marks 50 feet in length to the point of impact on the extreme right-hand side of the defendant's lane of travel. There were no brake marks left by the plaintiff's car. Douthitt testified that shortly before the accident occurred he was driving between 45 and 55 miles per hour. The witness Massie testified that he was a passenger in the defendant's car, travelling between 45 and 55 miles an hour, and that when they came over the crest of the hill and first saw the plaintiff's automobile, it was travelling at a speed of 45 to 55 miles an hour, and was overtaking and passing another car proceeding northwardly. There was evidence that at the point of impact there is visibility for 500 feet.

Photographs and testimony tend to establish that the left front fender of the defendant's automobile struck the left front door of the plaintiff's automobile, with the damage extending along its left side. After the collision the defendant's car came to rest in the southbound lane with the front headed northeast and the right corner of the bumper about 10 inches west of the center line. The plaintiff's car came to rest on the east shoulder, opposite defendant's automobile, with the front headed northwest and the rear end against the dirt embankment. There were no marks on the road indicating the path of the plaintiff's car after leaving the point of impact. Before the photographs were taken which were introduced in evidence, the defendant's automobile was moved backwards onto the west shoulder of the road.

The plaintiffs contend that their damages were proximately caused by the negligence of the defendants in the following respects: operating the automobile in a reckless manner and at an unlawful rate of speed, greater than was reasonably proper under the circumstances, failure to keep the vehicle under proper control, failure to maintain a proper lookout and failure to use ordinary care.¹ The plaintiffs also contend that the defendants had a last clear chance to avoid the collision.

The uncontradicted evidence establishes the fact that the plaintiffs were overtaking and passing a car going in the same direction, and that when the collision occurred the plaintiff's car was skidding sideways on the left side of the road and in the lane of travel of the defendant's oncoming automobile.

Therefore, it becomes necessary to consider the reciprocal rights and duties of motorists, under Virginia law, when meeting and passing oncoming vehicles.

In Virginia it is provided by statute that motorists on highways of sufficient width shall drive their vehicles upon the right half of the highway unless it is impracticable to do so.² The statute recognizes certain exceptions relating to overtaking and passing.³ Obviously, this law was enacted to give protection to oncoming vehicles in their proper lane of travel.⁴ It is specifically provided by statute that "drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other, as nearly as possible, at least one-half of the main traveled portion of the roadway."⁵

The Virginia law further provides that it is reckless driving to overtake and pass another vehicle while approaching the crest of a hill where the driver's view is obstructed.⁶

In the instant case, the plaintiffs contend that when they collided with the defendant on the left of the highway they were legally attempting to overtake and pass a car proceeding in the same direction, as authorized by statute. The statutory duty not to drive on the left side of the center line of the highway in passing "unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety"⁷ imposes a duty on the driver of the overtaking vehicle to yield the right of way to any approaching vehicle while in its lane of travel.

It may be presumed that the drivers of approaching automobiles can observe each other at the same instant, and that each has the same distance and time within which to avoid a collision. Although the law requires that the driver of a vehicle on the right side of the road, observing a vehicle approaching on the wrong side, shall exercise due care to avoid a collision, he has the right to assume that the driver of the approaching vehicle will obey the law and return to his side of the highway in time to avoid a collision.⁸

Applying the rules to which we have referred, it is apparent that the plaintiff Kale was guilty of negligence which proximately caused the collision. He undertook to overtake and pass another vehicle proceeding in the same direction, while in a valley or blind spot in the road and where he could neither see nor be seen by oncoming traffic for a sufficient distance to complete the passing in safety.

Under such circumstances it was his duty, upon observing the defendant's oncoming automobile, to return to the right side of the highway and give to the defendant, as nearly as possible, at least one-half of the main-travelled portion of the roadway.

Plaintiffs contend that this is "the classic case of a helpless plaintiff, stuck on the wrong side of the road, the reasonable inference being that he could not return to his side of the road until the car he was trying to pass had moved ahead". He argues that "until such car had moved ahead, his return to his own side of the road was blocked".

The plaintiffs rely on Monday v. Clynes, 6 Cir., 1954, 212 F.2d 802; Greear v. Noland Co., 197 Va. 233, 89 S.E. 2d 49; and Clark v. Kimnach, 198 Va. 737, 96 S.E.2d 780.

The doctrine of last clear chance, as applied in Virginia, is stated in the case of Greear v. Noland Co., supra, as follows:

"Where the injured person has negligently placed himself in a situation of peril from which he is physically unable to remove himself, the defendant is liable if he saw, or should have seen, him in time to avert the accident by using reasonable care. Where the plaintiff has negligently placed himself in a situation of peril from which he is physically able to remove himself, but is unconscious of his peril, the defendant is liable only if he saw the plaintiff and realized, or ought to have realized, his peril in time to avert the accident by using reasonable care." 197 Va. 233,

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