Ketchmark v. Lindauer, 4505

• Decision Date: 23 April 1956
• Docket Number: No. 4505,4505
• Citation: 198 Va. 42,92 S.E.2d 286
• Parties: DONALD J. KETCHMARK v. L. DAVID LINDAUER, ADM'R OF THE ESTATE OF JOHN HENRY RAU, DECEASED. Record
• Court: Virginia Supreme Court

Page 286

92 S.E.2d 286

198 Va. 42

DONALD J. KETCHMARK v. L. DAVID LINDAUER, ADM'R OF THE ESTATE OF JOHN HENRY RAU, DECEASED.

Record No. 4505.

Supreme Court of Appeals of Virginia

April 23, 1956.

Lawson Worrell (Tom E. Gilman and Williams, Cocke, Worrell & Kelly on brief) for the plaintiff in error.

James A. Howard (Breeden, Howard & MacMillan on brief), for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

L. David Lindauer, as Administrator of the estate of John Henry Rau, instituted this action against David J. Ketchmark charging him with gross negligence resulting in the death of his decedent while a guest in an automobile owned and operated by Ketchmark. The administrator obtained in the lower court a verdict and judgment for $15,000.00, from which Ketchmark appeals.

The parties will be designated as plaintiff and defendant, according to the position they occupied in the lower court.

Defendant's first contention is that the evidence is insufficient to support the jury's verdict finding him guilty of gross negligence.

Plaintiff, the successful litigant in the lower court, is entitled to have the evidence, and all fair inferences therefrom, stated in the light most favorable to him. So stated it may be summarized as follows:

Defendant's home is in Omaha, Nebraska, and decedent's home was in Greenfield, Mass. Both were in the United States Navy stationed aboard the U.S.S. Adirondack, then in the Navy Yard at Portsmouth, Virginia. Defendant while in Portsmouth owned and used a 1952 Plymouth automobile. It had been driven only 15,000 miles and was stated to be in 'A-1 condition'.

On August 18, 1953, defendant drove his car to Norfolk, and on returning to Portsmouth that afternoon he met Rau at a bar, where each drank several bottles of beer. Thereafter they, in defendant's car, went to Ocean View to see a ball game. About 7:30 P.M. they left Ocean View and en route to Virginia Beach stopped at a cafe, where each drank a glass of beer. Neither being familiar with the highways in that area, defendant asked whether the highway they were on led to Virginia Beach. On being assured that it did they, defendant driving, with Rau as a passenger, left the cafe and proceeded miles east of the cafe Route 60 passenger, left the cafe and proceeded makes a sharp turn to the south. Continuing straight ahead from this turn in prolongation of Route 60's east-west axis is Route 305, which leads into Fort Story, a military reservation. Defendant, instead of making the turn on Route 60 to Virginia Beach, continued straight on Route 305 into Fort Story and ran into a concrete abutment, with resulting fatal injuries to the decedent serious injuries to himself, and the total wreck of his car.

As defendant was driving east on Route 60, a primary highway, there were posted to his right six signs indicating the maximum speed allowed, the maximum safe speed and other warning signs clearly within the range of the proper headlights of an automobile traveling east. The first of these warning signs was more than a mile west of the intersection of Routes 60 and 305, and read: 'Reduced Speed Ahead'; seven-tenths of a mile from this point was a sign 4 X 6 feet reading 'Slow -- Sharp Curve Ahead'; approximately 165 feet from this sign was another 12 feet high reading 'Maximum Safe Speed 20 Miles'; approximately 150 feet farther was another sign approximately 4 X 6 feet reading 'Military Reservation 500 Feet'; approximately 200 feet farther was another sign 12 feet high reading 'Maximum Safe Speed 20 Miles'. In the center of the intersection was an overhanging blinker light, a sign and an arrow indicating that Route 60 turns right towards Virginia Beach. The entrance to Fort Story is 300 feet east of this intersection and is 49 feet 2 inches wide with brick pillars several feet high on each side. On the brick pillar to the right in large black letters with white background are the words 'West Gate'. 'Show Identification'. 'Dim Lights'. 'Traffic Regulations Strictly Enforced'. On the left pillar is the same type of lettering reading 'West Gate'. Thirty-four feet to the east of this entrance, within the fort and in the center of the road, is a gate house for the sentries, who are required to stop and inspect all parties entering the fort. On the top of the gate house there is a sign reading 'Fort Story Transportation Corps'. Just to the front of the gate house and facing west is a reinforced concrete abutment 3 inches thick and 3 feet high painted with black and yellow stripes. In the center of the abutment is a 'Stop' sign painted with luminous paint which reflects automobile lights. The road on each side of the abutment is 19 feet 7 inches wide. This afforded defendant full opportunity to have missed striking the abutment by making a slight turn to the north or south.

Defendant's car came to rest immediately after the accident at a 45 degree angle 2 or 3 feet from the base of the abutment. There were no skid marks and it seems that the brakes were not applied. It was a total wreck. The windshield was thrown 35 feet from the car and the hub cap 19 feet, indicating that the car was traveling at a high rate of speed at a point where all travelers were directed to stop.

Defendant claims that due to head injuries sustained in the accident he did not remember many of the incidents that occurred just prior to the impact. His memory of incidents favorable to him seems to have been better than his memory of other matters not so favorable. He said he was somewhat blinded by the bright lights of a car which he thought came from a side road ahead of him, but which was evidently on Route 60 and made the turn at the intersection with Route 305. He also said the operator did not dim his lights 'until he was almost meeting us.' This testimony, if true, is no defense for the failure of defendant to see and heed the blinker light overhead at the intersection and the 'Stop' and other signs indicating the entrance to the fort, all of which were east of the point where he met the westbound car. While the evidence is that the five electric lights, one on each side of the brick pillars, the red light on the abutment, and one on each side of the gateway, were off on this particular night, the other signs mentioned were plainly visible and within the range of the lights of an automobile traveling east.

There is no substantial contradiction of the evidence, which tends to show that the defendant drove his car at an excessive rate of speed for more than a mile down Route 60 in utter disregard of the numerous stop signs, speed signs, warning and caution signs and straight into the fort, striking an abutment, which could easily have been avoided even at the speed he was traveling if he had been keeping a reasonable lookout.

Our conclusion is that the testimony is sufficient to justify the jury in finding defendant guilty of gross negligence.

Defendant's second contention is that the trial court erred in refusing to hold that plaintiff's decedent was guilty of contributory negligence as a matter of law.

This contention is based not upon the evidence introduced, but upon the failure of plaintiff to introduce evidence tending to prove that decedent...