Keen v. Harman
| Decision Date | 05 March 1945 |
| Citation | 33 S.E.2d. 197,183 Va. 670 |
| Court | Virginia Supreme Court |
| Parties | KEEN. v. HARMAN. |
Rehearing Denied April 28, 1945.
Reversed and final judgment entered for defendant.
Before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
F. H. Combs, of Grundy, and C. E. Hunter, of Roanoke, for plaintiff in error.
S. H. & Geo. C. Sutherland, of Clintwood, for defendant in error.
On December 2, 1943, Ottis Stinson, a young man 17 years of age, invited Shirley Mutter, his 16-year-old sweetheart, Cinda May Harman, 18 years of age, and her friend, Howard McGlothlin, a soldier home on a furlough, to ride with him in his one and a half ton International truck to a basketball game in Garden City, some five miles from the home of the respective parties. On their return from the basketball game, Ottis Stinson permitted Guy Mutter and Charles Stinson, two boys about 12 years of age, to ride in the body of the truck; the other four were riding in the cab. The parties stopped at Dye's restaurant, Keen Mountain, and purchased soft drinks and other delicacies. They remained in the restaurant 15 to 20 minutes and left about 10:30 p. m. for their respective homes, one to two miles away. Soon thereafter the truck turned over. The four occupants of the cab were killed and the two small boys were seriously injured.
The administrator of the estate of Cinda May Harman instituted this action for wrongful death against the administrator of Ottis Stinson and recovered a verdict and judgment for $4,000. To that judgment this writ of error was awarded.
Two of the three assignments of error challenge the sufficiency of the evidence to convict Ottis Stinson of gross negligence. There is no substantial conflict in the testimony, hence the question presented by these two assignments of error is whether reasonably fair-minded men may differ as to the conclusion of fact to be drawn from the evidence.
The truck was traveling in a southeasterly direction on route No. 4 toward the town of Raven around a 32-degree left curve down a six per cent, grade. At the bottom of the curve, the highway is practically level and straight for some distance. The hard surface is 18 feet wide with shoulders from 6 to 11 feet on either side.
On the left is a steep bank of shale and rock extending upward at an angle of approximately 45 degrees. To the right beyond the shoulder is the right bank of the Levisa river. The tracks of the right wheels of the truck indicated that it ran off the hard surface on the right dirt shoulder and continued thereon for 100 feet to the bottom of the curve and then for 90 feet diagonally across the hard surface to and across the 6-foot left shoulder, over a 15-inch ditch and up the shale bank 10 to 15 feet, and came to rest on its top with the wheels in the air 45 feet from the last mark on the bank of shale. The front of the truck was lying on the left shoulder with the rear end extending diagonally across the hard surface.
The body of the truck was about 16 feet long. Its sides were made of boards 30 inches tall, and the floor consisted of inch boards fastened to the cross beams with 8 penny nails. The side and floor boards were knocked loose by the impact and scattered on the left shoulder and the hard surface 15 to 20 feet northwest of the spot at which the truck came to rest. The two boys were found unconscious on the left edge of the hard surface with several of the floor boards lying across them. On regaining consciousness, they stated that the last thing they remembered was leaving the restaurant. The four occupants of the cab were instantly killed, or, at least, were found dead by two motorists who came upon the scene soon after the accident.
Plaintiff contends that the condition of the weather and the physical marks on the highway, the shoulders and the shale bank, considered together, are sufficient to convict Ottis Stinson of operating his truck at such an excessive speed as to show "an utter disregard of prudence amounting to complete neglect of the safety" of his guest.
One of plaintiff's witnesses, who arrived on the scene shortly after the accident, stated: "It was drizzling rain. * * * there was some fog." The dirt and gravel on the right shoulder on the curve were plowed up and scattered by the right wheels of the truck. The tracks of the right wheels continued for 100 feet on the right shoulder and indicated that, just before the truck returned to the hard surface, it had narrowly missed going over the end of a concrete culvert which was approximately 4 feet from the right edge of the hard surface. The marks on the shale bank to the left, about 150 feet from the end of the culvert, indicated that the truck was tilted to the right and traveling with practically all of its weight on its right wheels. There was an 8 to 10-inch mark 12 feet from the bottom of the shale bank which fitted the front end of the spring and indicated that the truck was in the act of turning over as the spring scraped the shale. There were no other scratches or marks from the end of this particular mark on the shale bank to the point 45 feet away where the truck came to rest lying on the crushed top of the cab.
Several witnesses stated that. the tracks of the wheels of the truck on the soft, wet, gravel right shoulder indicated that the truck was traveling fast. F. A. Porterfield, a member of the State police force and a witness for plaintiff, stated that the tracks of the right wheels on the wet right shoulder and the manner in which the dirt and gravel were scattered indicated to him that the truck was traveling fast, "more than 35 miles per hour, " but, on cross-examination, he stated that the truck could have made the same tracks and scattered gravel in like manner if it had been traveling 20 to 25 miles an hour. Use of the word "fast" in reference to the rate of speed on the highway is a relative and indefinite term. The rate of speed may be fast to one person and slow or moderate to...
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