Kinsey v. Brugh

• Decision Date: 12 November 1931
• Citation: 161 S.E. 41
• Parties: KINSEY . v. BRUGH.
• Court: Virginia Supreme Court

161 S.E. 41

KINSEY .

v.BRUGH.

Supreme Court of Appeals of Virginia.

Nov. 12, 1931.

Error to Circuit Court, Botetourt County.

Action by L. Brugh against Thomas Kinsey. To review the judgment for plaintiff, defendant brings error.

Affirmed.

Argued before CAMPBELL, HOLT, EPFS, HUDGINS, and GREGORY, JJ.

Paul B. Woodfin and H. D. Dillard, both of Roanoke, for plaintiff in error.

William Allen, and A. B. Hunt and T. W. Messick, both of Roanoke, for defendant in error.

HUDGINS, J.

Thomas Kinsey, the defendant below, is seeking to reverse a judgment rendered against him in favor of L. Brugh, the plaintiff below, for personal injuries suffered by the plaintiff when the buggy in which he was riding was struck by the defendant's truck.

The defendant moved the trial court t i set aside the verdict on the ground that it was against the weight of evidence and without evidence to support it. The refusal of the court to grant this motion is the only error assigned. The facts are substantially as follows:

On December 13, 1929, around 7:30 p. m.,

the plaintiff in a buggy was traveling north on Lee Highway, a short distance south of Troutville; the defendant, driving a truck in the same direction, struck the plaintiff's buggy from the rear, throwing him to the ground and inflicting the injuries for which in this action he seeks recovery.

The width of the highway along this stretch is 18 feet of hard surface, plus several feet of dirt shoulder on each side. The right wheels of the buggy were on the dirt shoulder approximately 2 feet to the east of the edge of the hard surface. There is a concrete bridge across the highway 287 feet south of the point of impact; immediately south of this bridge is a curve in the road which ends very near the bridge. From the north end of this curve to the point of impact, a distance of more than 287 feet, the road is straight.

The defendant states that he knew he was approaching Troutville and that pedestrians frequently used this highway, walking on the hard surface; that the bridge had concrete side walls several feet high; that ashe rounded the curve just south of the bridge, he looked several hundred feet north of the bridge and saw the lights of no vehicles traveling in either direction; that as he approached and crossed the bridge he permitted his car to run in a straight line, thereby going somewhat "on the left side of the right half of the hard surface, his light shining on the telephone pole" to the left of the road 232 feet north of the bridge. The reason he gave for leaving the right-hand side of the road was that he might give pedestrians ample room to pass between his car and the eastern wall of the bridge. There were, however, no pedestrians using this stretch of the road at that time. When he reached a point opposite the above-mentioned telephone pole 232 feet north of the bridge, he turned his car to the right in order "to get over on the right-hand side of the road entirely. This threw my light to the right-hand side of the road. I did not see plaintiff. It seems my lights must have gone around him. When I got on the right side of the road the buggy of the plaintiff appeared just a few feet in front of me with no lights. He was traveling well to his right-hand side, his right wheels probably off the road. * * * " The impact threw the plaintiff out of the buggy and caused the truck to turn to the right, running several feet down an embankment and through a wire fence.

If the defendant drove his car "on the left half of the right half of the hard surface, " then the right side of his truck could not have been more than 5 feet from the eastern edge of the hard surface. Three feet of this space was in line with the plaintiff's buggy. Yet the defendant claims that he drove 232 feet from the bridge to within 55 feet of the point of impact, then turned to "go over entirely on the right-hand side, " and did not see the plaintiff until he was within a few feet of him. The defendant proved that his lights were in good condition. Then the plaintiff should have been clearly discernible to him in time to have avoided the accident. It follows that if the defendant had been keeping a proper lookout he would have seen the plaintiff in ample time to have avoided striking the buggy.

It is claimed that the plaintiff was guilty of contributory negligence as a matter of law. The only act of negligence chargeable to him was his violation of Code, § 2145 (50), subd. f, requiring that a lighted lamp or lantern be displayed on vehicles of this character traveling over the highway at night. The violation of an ordinance or statute does not make the violator guilty of negligence which will support a recovery for damages unless such violation was the proximate cause of the injury. Chesapeake & O. Ry. Co. v. Barlow, 155 Va. 863, 156 S. E. 397;

Virginian Ry. Co. v. Haley, 156 Va. —, 157

S. E. 776; Bassett & Co. v. Wood, 146 Va 654, 132 S. E. 700; So. Ry. Co. v. Bailey, 110 Va. 833, 67 S. E. 365, 27 L. R. A. (N. S.) 379.

It is elementary that a plaintiff seeking to recover damages for an injury caused by the negligence of the defendant must himself be free from negligence; if it appears that the plaintiff's negligence has contributed as an efficient cause to the injury, the court will not undertake to balance the negligence of the respective parties for the purpose of determining which is the most at fault. This general rule, however, is subject to the qualification that where the negligence of the defendant is the proximate cause of the injury and that of the plaintiff the remote cause, the plaintiff may recover,...