Lerwill v. Regent Van & Storage, Inc.
| Decision Date | 24 November 1976 |
| Docket Number | No. 751269,751269 |
| Citation | 229 S.E.2d 880,217 Va. 490 |
| Court | Virginia Supreme Court |
| Parties | John LERWILL, Jr., v. REGENT VAN & STORAGE, INC., and Langhorn Badgett. Record |
George H. Gray, Norfolk (Outland, Gray, O'Keefe & Hubbard, Norfolk, on brief), for plaintiff in error.
Henry C. Morgan, Jr., Norfolk (Pender, Coward, Addison & Morgan, Norfolk, on brief), for defendants in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
This is an appeal from a final order entering judgment for Regent Van & Storage, Inc. and Langhorn Badgett (defendants) on a jury verdict in their favor in a personal injury action by the plaintiff, John Lerwill, Jr. (Lerwill or plaintiff). Plaintiff's principal assignments of error are directed to the granting and refusing of instructions.
The plaintiff, who was then a petty officer in the United States Navy, was severely and permanently injured at approximately 5:35 P.M. on December 20, 1973, when the car he was driving collided with the rear of a furniture van operated by Langhorn Badgett (Badgett). The truck was owned by Regent Van and Storage, Inc. (Regent). Prior to the crash, both vehicles had traveled westwardly on Shore Drive, a four lane highway with a grass median strip separating the two eastbound lanes from the two westbound lanes. The posted speed limit on the highway was 45 miles per hour. The weather was cloudy and the lights on both vehicles were burning because of darkness. Prior to the erash, each of the vehicles had been proceeding in the left (inside) westbound traffic lane.
Badgett's destination was an apartment complex on the south side of Shore Drive. To get into the development, it was necessary for Badgett to turn left from the westbound lane of Shore Drive, pass through a crossover in the median, and then to cross the eastbound lanes of Shore Drive.
Badgett testified, without contradiction, that he signaled for a left turn as he drove down the inside lane approaching the crossover. After entering the crossover at about a 45 angle, he stopped to await approaching eastbound traffic on Shore Drive. Badgett said he attempted to stop as near as possible to the eastbound lanes without impeding traffic in those lanes. While in this position, the right rear corner of his truck, which extended into the inside westbound lane, was struck by the plaintiff's car.
The plaintiff, who suffered from post traumatic amnesia, testified that he could not recall the crash or anything which occurred after he turned onto Shore Drive approximately two miles east of the crash scene.
The only other eye witness to the accident, Gary C. King (King), testified that he had driven approximately five to eight car lengths behind plaintiff from the time Lerwill entered Shore Drive until he collided with the truck. Both King and Lerwill drove this distance in the inside westbound lane at a speed of approximately 45 miles per hour. As King rounded a slight curve, which other evidence establishes to be between 280 and 340 feet east of the point where the vehicles collided, King observed '. . . his (Lerwill's) brake lights come on about the same time I (King) saw the lights of the truck.' King testified that he then observed Lerwill's car '. . . slid(e) sideways, (with his) front end going from right to left, and then he made impact.' King, in the meantime, 'checked (his) rearview mirror and went into the right lane and then eventually onto the shoulder.' King testified he was still approximately 10 feet east of the rearmost portion of the truck when he stopped on the shoulder of the road.
When asked to describe intensity of the lights on the truck, King responded: King corroborated Badgett's testimony that eastbound traffic on Shore Drive required Badgett to stop. King verified that the truck
The accident was investigated by Detective L. D. Fox (Fox or the detective) of the Virginia Beach Police Department, who was assigned to the Traffic Bureau of that department on the date the accident occurred. When Fox arrived at the scene shortly after the crash the two vehicles had not been moved from where they came to rest after the collision. The blinking left turn signal lights on the truck were in operation. He found that the 'rear portion' of the truck 'had a deposit of film, not clogged up with dirt, . . . (a)nd this (film) was also on the rear lights of that truck, and they (the lights) appeared dimmer to (him) than (the lights on) other vehicles.'
The detective testified that the road at the accident scene was straight and level from the point of impact to a slight curve which was 'somewhere between' 280 and 340 feet east of the crash site. While the weather was cloudy and darkness had descended, the blacktop road surface was dry and it was free of defects and loose material.
Fox measured the width of the median strip and found it to be 29 feet two inches. He observed that the truck, which was 33 feet long, projected four feet and three inches into the inside westbound traffic lane. The front of the truck, which was sitting at an angle to the crossover, was four feet and six inches north of a prolongation of the northern edge of the pavement of the inside eastbound lane of Shore Drive.
Detective Fox found 42 feet of skid marks leading to the front wheels and 84 feet of skid marks leading to the rear wheels of Lerwill's car. The marks leading to the rear wheels 'slant(ed) slightly to the right of the vehicle as though it were going to change lanes . . . (a)nd the front tire (skid marks) show a more definite skid toward the right.'
Plaintiff argues that the trial court erred in refusing his Instructions A and D. Instruction D reads as follows:
'The Court instructs the jury that:
'The driver of the moving van owed the duty to exercise reasonable care under the existing circumstances not to obstruct the highway in such a manner as to be a source of potential danger to the traveling public.
'And if you believe from a preponderance of the evidence that the driver of the moving van failed to exercise reasonable care in the performance of the foregoing duty, then he was negligent; and if you further believe from such evidence that any such negligenct was the sole proximate cause of the accident, then you shall return your verdict in favor of the plaintiff.'
Instruction A instructed the jury that:
'It was the duty of the defendants not to stop their moving van on the highway in such manner as to impede or render dangerous the use of the highway by others, except in the case of an emergency as the result of an accident or mechanical breakdown.
'And if you believe from a preponderance of the evidence that the defendants violated the foregoing duty, then they were negligent, and if you further believe from such evidence that any such negligence was the sole proximate cause of the accident, then you shall return your verdict in favor of the plaintiff.'
Lerwill also says that the court erred in granting Instruction 8 tendered by the defendants which told the jury:
'The Court instructs the jury that the defendants owed a duty to exercise reasonable care under all of the...
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