MacGregor v. Bradshaw

• Decision Date: 16 June 1952
• Docket Number: 3935,Nos. 3934,s. 3934
• Citation: MacGregor v. Bradshaw, 193 Va. 787, 71 S.E.2d 361 (1952)
• Court: Virginia Supreme Court
• Parties: A. R. MACGREGOR, ADMINISTRATOR OF THE ESTATE OF HAROLD EUGENE SKIDMORE, DECEASED v. ELWOOD FRANK BRADSHAW. ELWOOD FRANK BRADSHAW v. T. FRANK FINES, ADMINISTRATOR OF THE ESTATE OF JOHN JOSEPH GILBERT, DECEASED. Record

Page 361

71 S.E.2d 361

193 Va. 787

A. R. MACGREGOR, ADMINISTRATOR OF THE ESTATE OF HAROLD EUGENE SKIDMORE, DECEASED v. ELWOOD FRANK BRADSHAW.

ELWOOD FRANK BRADSHAW v. T. FRANK FINES, ADMINISTRATOR OF THE ESTATE OF JOHN JOSEPH GILBERT, DECEASED.

Record Nos. 3934, 3935.

Supreme Court of Appeals of Virginia

June 16, 1952.

Williams, Cocke & Tunstall and Lawson Worrell, Jr., for plaintiff in error, A. R. MacGregor, Administrator of the Estate of Harold Eugene Skidmore, Deceased.

Rixey & Rixey and Spencer G. Gill, Jr., for defendant in error, Elwood Frank Bradshaw.

Rixey & Rixey and Spencer G. Gill, Jr., for plaintiff in error, Elwood Frank Bradshaw.

Williams, Cocke & Tunstall and Lawson Worrell, Jr., for defendant in error, T. Frank Fines, Administrator, &c.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

On Monday, June 27, 1949, about four a.m., a trailer-truck driven by Elwood Frank Bradshaw northwardly along Highway No. 1, in Stafford county, collided with a Buick sedan driven southwardly and occupied by Harold Eugene Skidmore and John Joseph Gilbert. Skidmore and Gilbert were both killed and Bradshaw, the only survivor and eyewitness, was badly injured in the collision. There was no direct testimony as to which of the occupants of the Buick car was driving at the time of the collision, and one of the principal issues presented to us is the sufficiency of the circumstantial evidence to warrant a finding that Skidmore was driving.

Bradshaw filed in the court below a notice of motion against the personal representatives of Skidmore and Gilbert to recover damages for his (Bradshaw's) serious injuries sustained in the collision. The notice alleged that at the time of the collision the car was being driven and operated by Skidmore and Gilbert and that the collision and resulting injuries to the plaintiff were proximately due to the negligent manner in which the Buick car was being operated.

In addition to a general denial, each personal representative filed a 'Plea of Non-Agency,' accompanied by an affidavit that 'affiant's decedent' was not driving or operating the Buick car at the time of the collision. Code, § 8-115.

Upon the evidence adduced and after hearing the instructions of the court, the jury found a verdict of $15,000 in favor of Bradshaw against Skidmore's administrator, upon which the lower court entered judgment. It overruled the motion of Skidmore's administrator to set aside the verdict. It likewise overruled the motion of the plaintiff, Bradshaw, that upon the evidence adduced judgment should be rendered in his favor against both administrators.

Upon a single record we have granted writs of error to Skidmore's administrator and Bradshaw, respectively, to review the action of the court on these motions and on certain other incidents of the trial.

At the point where the collision occurred U.S. Highway No. 1 runs approximately north and south and is paved to a width of forty feet, with two northbound and two southbound lanes separated by a double white line. A secondary road, No. 627, intersects the eastern side of U.S. Highway No. 1 at an acute angle from the southeast. From the point of this intersection going northwardly, the direction which the truck was proceeding, the surface of the pavement is slightly upgrade.

At the time of the collision day had just broken and both vehicles had their lights on. The weather was clear, visibility good, and the road dry.

Immediately before the collision and for some time prior thereto the trailer-truck driven by the plaintiff, Bradshaw, with a gross weight of 40,000 pounds, was traveling north in its right-hand lane at a speed of about forty miles per hour.

According to Bradshaw, the only surviving eyewitness to the collision, as he was driving along in the manner indicated he noticed the Buick automobile coming southwardly along the road at a very rapid rate of speed. Suddenly the southbound car ran off the road on its right-hand side along the shoulder or ditch for about seventy feet, then cut to its left and ran or skidded at an undiminished speed diagonally across the road for a distance of approximately 150 feet into the eastern or northbound lane of the road along which the truck was then proceeding.

Bradshaw estimated the speed of the approaching car at eighty miles per hour. Sensing that a collision was imminent, he endeavored to cut his truck to the right but was unable to avoid the collision which occurred near the center of the easternmost or northbound traffic lane. The front of the automobile struck the left side of the trailer-truck near the cab. Both vehicles were demolished and came to a rest, heading northeast, against trees on the east side of the highway, to the right of the northbound traffic lane, and in the fork between the intersection of Highway No. 1 and secondary road No. 627. The truck caught fire.

Bradshaw, badly injured, was pinned in the cab of the truck, but was able to extricate himself from his burning vehicle. He observed that two occupants had been thrown from the car. The body of Skidmore, who had been killed instantly, was, as Bradshaw said, 'lying on the left-hand side of the car, off a little distance. ' Gilbert, the other occupant, mortally injured, was 'lying on the right-hand side' of the car.

The first person to reach the scene, who left without identifying himself, dragged Bradshaw away from the burning truck and placed him near the center of the secondary road. He also dragged Gilbert, who showed signs of life, away from the wreckage. He informed Bradshaw that Skidmore, who was then lying on the 'left-hand side of the car,' was dead.

The next person on the scene was W. H. Abel who lived in the vicinity. He found Skidmore's body 'in front of the car' and Gilbert four or five feet south of the car.

State Trooper Powers, who arrived at the scene fifteen or twenty minutes after the collision, found the body of Skidmore lying in the center of the secondary road, just east of the eastern edge of U.S. Highway No. 1, and ahead of the automobile. It had been covered and left there to await the release of the coroner. Gilbert was being loaded into an ambulance at the time Trooper Powers arrived on the scene.

Powers found both vehicles, heading north, against trees on the eastern edge of U.S. Highway No. 1, just south of the southern line of the secondary road. The automobile was ahead of or to the north of the truck. The left rear wheels of the trailer were almost off of the right-hand side of the road.

Trooper Powers found marks on the highway which confirmed Bradshaw's testimony that the automobile had run along the shoulder and into the ditch on the western side of the highway and then skidded across the paved portion of the highway at an angle of forty-five degrees, in a southeasterly direction, into the northern traffic lane of the truck. These marks, he said, indicated that the car was out of control.

The photographs offered as original exhibits in the court below corroborate the verbal testimony as to the complete demolition of the two vehicles.

The circumstances with respect to the operation of the Buick car are these: The automobile, a 1940 four-door sedan, belonged to Carl Gilbert of Detroit, Michigan. At the time of the accident his son, John Joseph Gilbert, twenty years of age, was a member of the United States Marine Corps, stationed at Camp Lejeune, North Carolina. Young Gilbert sought and obtained the permission of his father to drive the car from Detroit to Camp Lejeune, in order that the son might have the pleasure of using it for a short while in and around the camp. On Friday, June 24, about 4:30 p.m., young Gilbert and his friend, Skidmore, were granted liberty from the camp until six a.m. on Monday, the 27th. According to the captain of their company, who granted them leave, it was understood that they would go together to Detroit where Gilbert would get the car and that Skidmore would 'help him drive it back' to camp.

The young men arrived at the Gilbert residence sometime on Saturday and left in the car together about two o'clock the next morning. No special instructions were given by the owner of the car as to how it should be driven, but it was his 'understanding' that the young men 'were going to share the duties in driving.'

Gilbert senior estimated the distance from Detroit to Camp Lejeune at approximately 700 miles and thought that by 'consistent driving' and without stops it could have been covered 'very leisurely' in about sixteen hours. At the time of the collision which, as has been said, occurred at about four o'clock on Monday morning, the young men were approximately 265 miles from the camp to which they were due to return at six a.m. on that day.

It is scarcely debatable that the evidence is sufficient to warrant a finding that the collision was proximately due to the negligence of the driver of the Buick car. We have the undisputed evidence that the occupants would be overdue at their destination, that their vehicle was traveling at a speed much in excess of the fifty miles per hour permitted by law (Code, § 46-212), that it ran off the road on its right-hand side and proceeded some seventy feet along the shoulder and ditch, then veered back to the pavement and skidded 'sideways' in a manner indicating that it was out of control, for a distance of 150 feet, diagonally across the entire width of the pavement and into the easternmost northbound lane in which the truck was proceeding.

It was the duty of the operator of the car to drive on his right-hand side of the road (Code, § 46-220), and the unexplained fact that he was driving diagonally across the highway to the extreme left was evidence of negligence. Interstate Veneer Co. v. Edwards, 191 Va. 107, 112, 60 S.E. (2d) 4, 7.

We are also of opinion that the lower court correctly held that there was no evidence that the plaintiff, Bradshaw, was guilty of contributory negligence....