Keeler v. Baumgardner

• Decision Date: 16 November 1933
• Citation: 161 Va. 507
• Court: Virginia Supreme Court
• Parties: KATHRYN KEELER v. WALTER H. BAUMGARDNER.

Page 507

161 Va. 507

KATHRYN KEELER v. WALTER H. BAUMGARDNER.

Supreme Court of Virginia, Richmond.

November 16, 1933.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

1. APPEAL AND ERROR — Where There Have Been Two Trials — Duty of Appellate Court to Look First to the Evidence and Proceedings of the First Trial. — Where there have been two trials and the record in both trials is before the appellate court, it becomes the duty of that court to look first to the evidence and proceedings of the first trial and if it is discovered that the court erred in setting aside the verdict in the first trial the appellate court will set aside all proceedings subsequent to the first verdict and enter judgment thereon.

2. APPEAL AND ERROR — Last Clear Chance — Verdict Set Aside for Error in Submitting to the Jury the Question of Last Clear Chance — Evidence Justifying Instruction upon Doctrine of Last Clear Chance — Case at Bar. — In the instant case there were two trials and the records in both trials were before the Supreme Court of Appeals. In the first trial there was a verdict for the plaintiff, which the trial court set aside on the ground that it had erred in giving an instruction on the last clear chance doctrine. If the court committed reversible error in setting aside the first verdict because of the instruction on the last clear chance doctrine, the Supreme Court of Appeals will annul all subsequent proceedings and enter judgment upon the verdict rendered in the first trial. In the instant case the evidence justified the instruction upon that doctrine.

Held: Therefore that the court would annul all subsequent proceedings to the verdict in the first trial and enter judgment upon that verdict.

3. APPEAL AND ERROR — Verdict for Plaintiff Settled Conflicts in the Testimony in Favor of Plaintiff — Case at Bar. — The instant case arose out of an automobile accident. There was a verdict for plaintiff which settled in favor of plaintiff the material facts upon which there were substantial conflicts in the testimony.

4. NEGLIGENCE — Last Clear Chance — When Instruction Justified. — When a court is urged to apply the doctrine of the last clear chance, it must look to all of the evidence, which, of course, includes the testimony of all of the witnesses, the physical facts and all of the facts and circumstances which are relevant to the case. If from all of the evidence the jury could reasonably find that regardless of the state of negligence of the plaintiff, the defendant, by the exercise of ordinary care, had a clear chance to save him and failed to do so, then an instruction on the doctrine is justified.

5. AUTOMOBILES — Lookout — Pedestrian Struck by Car in Street — Case at Bar. — Where a motorist is required by law to keep a proper lookout, the test is not whether he actually saw the plaintiff in time to have saved him, but whether he could have seen him in time to have avoided the injury, by exercising ordinary care, and failed to do so.

6. AUTOMOBILES — Pedestrian Struck by Car in Street — Last Clear Chance — Case at Bar. — In the instant case, from the evidence the jury might have found that while plaintiff was in a state of negligence in crossing a street diagonally between intersections without exercising proper care for his safety, defendant ought to have seen him in his peril, in the exercise of ordinary care, and avoided striking him. If the jury could have drawn the latter conclusion from the evidence, then the plaintiff was entitled to have the jury instructed by the court on the doctrine of last clear chance.

7. NEGLIGENCE — Last Clear Chance — When Instruction Justified — Case at Bar. — The instant case arose out of an automobile accident. There were two trials. Upon the first trial there was sufficient evidence to warrant the granting of an instruction upon the doctrine of the last clear chance, and the court erred in setting aside the verdict for plaintiff on that trial because of supposed error in granting the instruction on the last clear chance.

Held: That the verdict on the first trial should be reinstated and the Supreme Court of Appeals should enter judgment thereon.

Error to a judgment of the Circuit Court of Wythe county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Thomas F. Walker and Donald T. Stant, for the plaintiff in error.

George P. Young and Stuart B. Campbell, for the defendant in error.

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

Walter Baumgardner instituted an action by notice of motion against Kathryn Keeler to recover for personal injuries he sustained by reason of being struck by an automobile driven by Mrs. Keeler. There were two trials of the case in the lower court, the first resulting in a verdict for the plaintiff for $5,000.00, which the court set aside, and the second in a verdict of $7,000.00, which the court refused to set aside. Judgment was entered upon the second verdict.

The record in both trials is before us, and under well-established rules in this jurisdiction it becomes the duty of this court to look first to the evidence and proceedings of the first trial and if it is discovered that the court erred in setting aside the verdict in the first trial this court will set aside all proceedings subsequent to the first verdict and enter judgment thereon. Clark Hugo, 130 Va. 102, 107 S.E. 730; Hogg Plant, 145 Va. 175, 133 S.E. 759, 47 A.L.R. 308; Peninsula Produce Exch. Upshur, 149 Va. 639, 140 S.E. 651; C. & O. Ry. Co. Nickel, 157 Va. 382, 161 S.E. 248.

The trial court in its order setting aside the verdict in the first trial indicated only one reason for doing so and awarding a new trial. The relevant portion of that order is in this language: "* * * that there was error in allowing the question of plaintiff's right to recover under the doctrine of last clear chance to go to the jury by instructions * * *." If the court erred in setting aside the verdict for the reason stated in the order (there being no other valid reason disclosed for setting it aside), then under the rule of decision previously referred to where there have been two trials of a case in the lower court, this court will annul all subsequent proceedings and enter judgment upon the verdict rendered in the first trial. It therefore becomes necessary to inquire into the correctness of the ruling of the court in granting an instruction or instructions upon the familiar doctrine of the last clear chance. Of course, if the evidence justified an instruction upon that doctrine, then the court committed reversible error when it set aside the first verdict because such an instruction had been granted.

The acts of negligence alleged in the notice are that Mrs. Keeler was driving without lights at the time the automobile was driven against the plaintiff; that she was driving the automobile at a greater speed than that allowed by law; that she was not keeping a proper lookout for pedestrians; that she failed to give any warning of her approach; that her brakes were not in good working order; that she could have avoided striking the plaintiff if she had slackened the speed of the automobile, or had given any warning, or had driven to the left of the plaintiff, and that she had a clear chance to avoid the plaintiff if she had exercised ordinary care.

The material facts, stated in the light of the verdict of the jury in favor of the plaintiff which settled the substantial conflicts in the testimony in his favor, are as follows: The collision between the plaintiff and the automobile driven by Mrs. Keeler occurred on the main street of the town of Wytheville on Saturday evening, December 6, 1930, about 6:30 o'clock, when it was dark. The night was "rainy and misty" and the street was wet. The street is sixty feet wide from curb to curb, and automobiles were parked on both sides at an angle of forty-five degrees. The space between the parked cars on the one side and those on the other was some thirty-five to forty feet, and it was left open for moving vehicles traveling easterly and westerly. The street was partially illuminated at the time by ordinary street lights, by the lights from the stores, which were open for business, and the lights from the office of the Appalachian Power Company.

The collision between the plaintiff, who was walking diagonally across the street, and the automobile driven by Mrs. Keeler occurred at a point, between intersections, about one hundred forty-six feet easterly from the easterly curb of Church street where it intersects with Main street, and on her right side of the street just about three or four feet from the rear of the parked cars on the southerly...