Krizak v. WC Brooks & Sons, Incorporated

• Decision Date: 29 June 1963
• Docket Number: No. 8915.,8915.
• Citation: 320 F.2d 37
• Parties: Ruth C. KRIZAK and John M. Krizak, Appellants, v. W. C. BROOKS & SONS, INCORPORATED, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

320 F.2d 37 (1963)

Ruth C. KRIZAK and John M. Krizak, Appellants, v. W. C. BROOKS & SONS, INCORPORATED, Appellee.

No. 8915.

United States Court of Appeals Fourth Circuit.

Argued March 28, 1963.

Decided June 29, 1963.

Emanuel Emroch and Frank N. Cowan, Richmond, Va., for appellants.

A. Scott Anderson, Richmond, Va. (Frank B. Miller, III, Richmond, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and PREYER, District Judge.

J. SPENCER BELL, Circuit Judge.

The plaintiffs, Ruth and John Krizak, sued the defendant, Brooks and Sons, Inc., for injuries which they sustained in an accident when the automobile in which they were riding as passengers collided with the defendant's tractor-trailer driven by its employee, Sydnor. The two cases were tried together and the jury returned general verdicts for the defendant. The plaintiffs raise four questions on this appeal, two involving the court's charge to the jury, and two involving evidentiary matters. For the reasons stated below, we reverse and remand for new trials.

The plaintiffs, husband and wife, were returning to their home in Harrisburg, Pennsylvania, from a trip to Florida with their friends, the Keisers. The collision occurred on U. S. Route 301 in the State of Virginia at about 7:00 o'clock on a snowy morning in February 1961. The party had spent the night at a motel north of Richmond. The host, Mr. Keiser, was driving. Mr. Krizak was sitting on the front seat with him. Mrs. Keiser was directly behind her husband, and Mrs. Krizak was beside her and directly behind Mr. Krizak. The plaintiffs were travelling north and the defendant's truck south; the two lane highway was straight where the collision occurred.

The substance of Mr. Krizak's testimony was that when the defendant's truck was about 300 feet from them it began to move into their northbound lane. He stated that when this occurred, Mr. Keiser took his foot off the accelerator, tried to turn and pass the truck to the left, but as he did so, the truck started back to its right and Keiser quickly turned back to his right just as the collision occurred.

Mrs. Krizak confirmed her husband's testimony that they were travelling in the northbound lane. She said that she did not see the truck until the instant of impact because she had leaned over to adjust some packages at her feet.

Sydnor, the defendant's driver, said that the automobile in which the Krizaks were riding came into his southbound lane immediately before the impact. As he put it, "the automobile just swerved into me, it wasn't no long way." He said he had no time to do anything but cut his wheels to the right and apply his brakes.

A third witness, Waddell, said he was driving his tractor-trailer approximately two trailer lengths behind the automobile when the collision occurred. He testified that when the automobile was about 150 feet from the place of impact it was "riding the center line"; that he saw the defendant's truck about 350 feet beyond the automobile travelling in its (southbound) lane. This witness had given a prior statement that he was approximately three or four city blocks away when the collision occurred. He placed the impact in the southbound lane.

I

On this record, we think that both plaintiffs were justified in complaining of the judge's submission of the issue of contributory negligence to the jury. We have examined the evidence in a light most favorable to the defendant and even so, we find no basis upon which the jury could reasonably find either of these passengers guilty of negligence. With due regard for the discrepancies in the testimony of the four witnesses, the only inference which reasonable men could draw from any of it was that no matter which vehicle got into the wrong lane, it got there so suddenly that nothing which the plaintiffs passengers could have done under the circumstances would have prevented the accident.

There is no evidence in the record which would raise an inference that both plaintiffs were not justified in their confidence in Mr. Keiser's ability as a driver throughout the trip to Florida and back through Virginia. Mr. Krizak, who was sitting on the front seat, testified that Mr. Keiser seemed perfectly aware of the actions of the defendant's driver and was taking defensive measures to protect his car when he, Krizak, observed defendant's truck in the northbound lane. Only the testimony of Waddell could possibly have justified the submission of the question to a jury on the theory that Keiser was driving recklessly, but even accepting this evidence the conduct was not of sufficient duration that we can infer it came to the attention of his passengers. That portion of his testimony which was admitted by the trial court was that for approximately 150 feet before the impact, the Cadillac was astride the center line of the two lane highway. Whether or not this occurred while the driver, Keiser, was taking the defensive action to which Krizak testified, it was clearly too short an interval to hold his passengers responsible for any failure to warn, nor was it necessarily inconsistent with Krizak's testimony that Keiser was aware of the situation. Virginia law has not made everyone in the car directly responsible for the operation of the car. A passenger's duty to direct does not arise until (1) it becomes plain that his confidence in his driver has been misplaced, or (2) he has reason to believe that his driver is unaware of danger or is not taking precautions against an apparent danger, Gilliland v. Singleton, 204 Va. 115, 129 S.E.2d 641 (1963); Mills v. Wells, 204 Va. 173, 129 S.E.2d 705 (1963), and in either case there must be sufficient time in which to give effective warning. Diggs v. Lail, 201 Va. 871, 114 S.E.2d 743 (1960). Even if we assume that the passengers were conscious that Keiser was over the center line for a distance of 150 feet before the accident, it would take only a few seconds for the two vehicles approaching each other at 35 to 40 miles per hour to close the distance. Krizak's remarks to the driver indicated that he felt the driver was aware of the situation and nothing he could have said would have been effective in this situation.

What has been said with respect to Mr. Krizak's case applies even more strongly to Mrs. Krizak's. Certainly, as a passenger riding on the back seat she was not required by law to keep her eyes glued to the highway in front. Her momentary attention to the packages at her feet was not evidence of negligence. Her case is equally as strong as that of the plaintiff in Diggs v. Lail, supra, in which the Virginia Supreme Court of Appeals stated that the trial court would have been justified in refusing to submit the issue of contributory negligence to a jury.

While each case presents its peculiar factual situation, the Virginia Courts have consistently held that the passenger as passenger must be guilty of negligence and there must be evidence adduced to support that fact before the issue may be submitted to the jury. Virginia Railway and Power Co. v. Gorsuch, 120 Va. 655, 91 S.E. 632 (1917). This case is factually distinguishable from Montgomery v. Whitfield, 188 F.2d 757 (4 Cir. 1951). There the passenger and her husband were driving around midnight when they approached the scene of a wreck where there was plainly visible a police car with blinking red light and an officer in the road waving his flashlight. The passenger looked over her shoulder and saw a vehicle they had just passed rapidly approaching them from the rear and said nothing as her husband pulled into the line of the oncoming car.

We find guidance too in Justice Spratley's opinion in Steele v. Crocker, 191 Va. 873, 62 S.E.2d 850 (1951). There a passenger sued her driver for injuries growing out of a collision. Traveling on a snow covered and slippery three lane highway, the driver overtook and passed three snowplows successively which were being operated in tandem. The first was partly in the driver's right lane and partly on the shoulder, the second covered the remainder of the surface of the right-hand and part of the center lane. The third snow plow, in advance of the others, covered the center lane and was approaching the crest of the hill. After the driver passed the third plow by moving into the extreme left-hand lane he met an oncoming vehicle. Attempting to pull suddenly to his right, he skidded. There, the issue of contributory negligence was submitted to the jury, but speaking of the passenger's duty the court said:

"Driving at 30 miles an hour and suddenly making a turn to the left gave his passenger little time to remonstrate. After he got into the lane it was too late to protest. Remonstrance might have resulted in more harm than good by creating hesitation or indecision as to his course. It is one thing to warn a driver of a danger unknown to him, and quite another to give directions when the danger is already imminent. One may prevent an accident, the other may tend to create an additional hazard."

Applying this doctrine to the present case, we find no evidence from which a jury could conclude that these passengers had any grounds to believe their confidence in Mr. Keiser as a driver was misplaced or that he was unaware of an existing danger, at least not until it was much too late to make an effective protest. Since the case was submitted on more than one issue and jury's verdict was a general one, the submission of this issue to the jury would require us to remand for a new trial. Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 27 S.Ct. 412, 51 L.Ed. 708 (1907); Schultz v. Tecumseh Products, 310 F.2d 426 (6 Cir. 1962); Atlantic Coast Line R. Co. v. Tiller, 142 F.2d 718 (4 Cir. 1944), reversed on other grounds, 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465 (1945).

II

Plaintiffs complain of the trial court's refusal to charge the jury of the defendant's driver's duty to maintain a proper lookout, to keep his...