Lilley v. Simmons, 4903
| Decision Date | 04 May 1959 |
| Docket Number | No. 4903,4903 |
| Citation | 108 S.E.2d 245,200 Va. 791 |
| Court | Virginia Supreme Court |
| Parties | JOHN JETHRO LILLEY, JR. v. MARY HELEN SIMMONS, AN INFANT, ETC. Record |
William Earle White (White, Hamilton, Wyche & Shell, on brief), for the plaintiff in error.
Albertis S. Harrison, Jr. (Robert W. Arnold, on brief), for the defendant in error.
Mary Helen Simmons, an infant, instituted this action by her next friend against John Jethro Lilley, Jr., to recover damages for personal injuries sustained by her when a motorcycle on which she was riding as a passenger collided with a truck operated by Lilley. A jury returned a verdict in favor of the plaintiff for $125,000, on which the judgment appealed from was entered.
The defendant assigns three grounds for reversal of the judgment against him. He contends that the trial court erred in refusing to submit the issue of contributory negligence of the plaintiff to the jury, that the verdict is excessive, and that two members of the jury were guilty of misconduct.
The trial of the case was singularly well conducted. Each of the parties was represented by able and competent counsel, who properly presented their respective claims and defenses. There are few exceptions in the record, and no objection to the instructions except as above stated. The evidence is without substantial contradiction, and the issues were clearly submitted to the jury.
The accident occurred on June 7, 1957, in Sussex County, on Route 634, a paved road approximately 18 feet wide, running east and west. The time was between 3:45 and 4:00 p.m. on a clear day. The vehicle operated by Lilley was a pickup truck which was going east, and the motorcycle, upon which Miss Simmons was a passenger, operated by Keith Pennington, was bound west. Miss Simmons was riding behind Pennington on what was called a 'buddy seat,' an ordinary and standard seat to permit two persons to ride on a motorcycle, one behind the other. Helen had her arms around Pennington's waist, as she considered it safer and more comfortable than to use handgrips on the side of the motorcycle. She had her left foot on a rest provided for that purpose, and her right foot on a platform behind and touching the foot of the operator. She had ridden several times on a motorcycle; had known Pennington for years; and had ridden on the motorcycle here involved once before with his brother.
The motorcycle was in good condition, save for a connection with its muffler, which condition had nothing to do with the accident. Pennington had operated motorcycles for four years, was 19 years old, and a college student. He testified that he had driven this particular motorcycle frequently and was familiar with its operation.
Pennington said that he noticed the truck approaching him several hundred feet distant; that he pulled over to the righthand side of the road as far as he could, applied his brakes and started slowing down; that the truck, when he first saw it, was slightly to its left of the center of the road; that as it approached it came further on its left side; and that when it got quite close it suddenly made a sharp turn to its left, came over completely on its left side of the road, and collided with his motorcycle. The motorcycle was traveling around 30 to 35 miles an hour at that time, and it was, at all times prior to the collision, on the right of the center of the road. The collision occurred at a point estimated as 6 to 12 inches from the edge of the pavement on the north side of the road. The right front fender of the truck struck the right-hand side of the motorcycle. The truck continued across the north side of the highway a distance of 81 feet into a peanut field. Skid marks were made by the rear wheel of the motorcycle to a point 2 1/2 feet from the northerly edge of the hard surface. The motorcycle, after the collision, turned to its left across the road for a distance of 71 feet.
An eye-witness, Elisha Butts, testified that he saw the pickup truck coming and that it was 'boiling the water,' meaning that it was making 'right good speed.' He also saw the motorcycle on its right side of the road, and said that it never got on its left side, nor gave any indication of going to that side.
Sam Edmunds said he saw the motorcycle traveling about 30 to 35 miles an hour, and the pickup truck coming so fast that he remarked to another person, 'Look at that fool how he is driving.'
Another witness, Gatewood Simmons, testified that fifteen minutes after the collision, Lilley, when asked what happened, said: 'I don't know,' and a minute or two later said, 'It was all my fault.'
Photographs of the road and place where the accident occurred show that the road is practically straight for almost one-half mile, with a slight curve from the western approach. Near the point of the accident there is a store on the southern side of the road, and two automobiles were parked in front of it. There were no unusual conditions on the highway or in the surroundings where the accident occurred.
Defendant testified that he first saw the motorcycle about 300 yards from him; that 'it appeared to be to the left of the center of the highway;' and that as the two vehicles approached each other, the motorcycle 'swerved' as if to make a turn into the driveway of the wayside store. He did not observe any sign or other indication that the motorcycle driver intended to make a left turn, except the impression he got from the 'weaving' or 'wobbling' of the motorcycle. He, Lilley, moved 'probably to the left of the center of the highway,' and as the vehicles got closer, he 'realized' that something had to be done because the motorcycle had come back on its right side of the road. At that time the truck was on its left side of the road and 'feeling' that there would not be sufficient time to get back to its right side, he pulled it further to the left and headed out toward the field. He said that, traveling at a lawful speed, he was 125 or 130 yards from the motorcycle when he mistakenly 'assumed' that it was going to make a left turn. He added that he could have brought his truck to a complete stop and allowed the motorcycle to pass in safety on its proper side if he had not wrongly 'guessed' what the motorcycle was going to do. He did not recall telling Gatewood Simmons that the collision was due to his fault.
Lilley admitted there was no reason why he should not have stayed on his side of the road until the motorcycle had made the turn he thought it was going to make, and that the collision came about because of his erroneous assumption that it was about to make a left turn.
In rebuttal, both Pennington and Miss Simmons testified that the motorcycle at no time left its right side of the road, weaved, or wobbled in the road, or that either of them had any intention of turning to their left, or gave any indication of such intention. Pennington further testified that at the time of the accident, Lilley said to him,
Dr. E. Palmore Irving, the physician who treated Miss Simmons, said he saw her on June 7, 1957, when she was brought to the hospital. Said he:
'She had several minor cuts on her right hand.
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