Mcgowan v. Tayman

• Decision Date: 18 March 1926
• Citation: 132 S.E. 316
• Parties: McGOWAN et al. v. TAYMAN.
• Court: Virginia Supreme Court

132 S.E. 316

McGOWAN et al.

v.TAYMAN.

Supreme Court of Appeals of Virginia.

March 18, 1926.

Error to Corporation Court, of Lynchburg.

Action by Lloyd Tayman, etc., against F. E. McGowan and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Fred Harper, of Lynchburg, for plaintiffs in error.

Royston Jester, Jr., and John L. Lee, both of Lynchburg, for defendant in error.

WEST, J. Lloyd Tayman recovered a judgment for $6,500 against F. E. McGowan and F. C. McGowan for personal injuries resulting from a collision between his bicycle and an automobile driven by F. C. McGowan. This writ of error is to that judgment.

Harrison street, in the city of Lynchburg, Va., is one of the principal thoroughfares of the city. Seventh street crosses Harrison practically at right angles. Seventh street descends at a steep grade from Federal street to Harrison, and ascends a considerable grade from Harrison to Madison street. On January 15, 1924, Lloyd Tayman, the plaintiff, a boy about 12 years of age, was riding his bicycle down Seventh street towards Harrison street with Thomas Callahan, a boy 9 years old, seated in front of him on the cross-bar of the bicycle. When Tayman started down Seventh street from Federal, he operated the pedals until his bicycle was running at a high rate of speed, and then coasted down grade, without brakes so as to make the grade from Harrison to Madison.

When Tayman was coasting down Seventh street, F. C. McGowan, one of the defendants, was driving his father's high-powered Packard car along Harrison street towards Seventh. Harrison street from Sixth to Eighth street is slightly down grade. According to the testimony of the defendant F. C. McGowan the machinery of his car was in perfect order, and he was "drifting" down Harrison street, with his car in gear, at from 15 to 17 miles an hour, and was applying the brakes from time to time so as to keep his car under control. When he reached a point within 30 or 35 feet of the intersection of the center line of Seventh and Harrison streets, he looked to the right, and saw the boys on the bicycle about 55 feet up Seventh street coming down the center of Seventh street at a terrific rate of speed. He put on gas in an effort to pass Seventh street ahead of the bicycle, but afterwards applied his brakes, and turned his car to the left in an effort to avoid a collision. The bicycle struck the side door about the middle of the car, doing considerable damage to the automobile and the bicycle, and permanently injuring young Tayman.

The assignments of error relate to the action of the court in admitting certain evidence, in giving and refusing instructions, and in refusing to set aside the verdict of the jury and grant a new trial.

During the trial the plaintiff was allowed to put in evidence two photographs for the purpose of showing a bicycle in Seventh street above Harrison, and introduced the photographer to explain that the photographs were taken from certain positions in Harrison street. It is contended that this was error.

It appears from the record that the court directed the jury to disregard the bicycle shown in the photographs and to regard the photographs only as views of the location of the accident. Besides, after all of the evidence had been introduced by both parties, the court, on motion of the defendant, permitted the jury to view the scene of the accident. Under these circumstances, this assignment is without merit.

In Lambert v. Jenkins, 71 S. E. 718, 112 Va. 383, Ann. Cas. 1918B, 778, the court, speaking through Judge Cardwell said:

"Nor did the court err in permitting the introduction of photographs of the floor in question, especially in view of the fact that the jury viewed the premises, and, therefore, could not possibly have been influenced to the prejudice of plaintiff in error by the photographs."

At the conclusion of the introduction of the evidence, the plaintiff asked for 4, and the defendant offered 7, instructions. The trial court took the view, and, we think, cor-rectly, that the plaintiff was guilty of negligence and could not recover, except under the doctrine of the last clear chance, and refused to give either of the 11 instructions so tendered by the parties, and gave 4 other instructions; No. 1 on motion of the defendants, No. 5 at the request of the plaintiff, and Nos. 2 to 4, inclusive, of its own motion, as follows:

No. 1 (given upon request of the defendants):

"The court instructs the jury that negligence on the part of the defendant cannot be assumed merely because in a collision with the defendant's automobile the plaintiff was injured; but the burden rests upon the plaintiff to establish negligence on the part of the defendant by a preponderance of evidence; and, if the plaintiff fails to do this, the jury must find for the defendant."

No. 2 (given by the court of its own motion):

"The court instructs the jury that the right of way ordinance of the city that requires the driver of a vehicle to give the right of way to the driver of another vehicle approaching from the right at street intersections is designed to prevent the stoppage of traffic; otherwise the vehicles have equal rights in the use of the streets, and the right of the driver coming from the left only yields to the driver coming from the right when necessity arises. Therefore, if the jury believe from the evidence that the plaintiff, under 14 years of age, was coasting upon a bicycle down Seventh street grade, with intent to cross Harrison street, and run up the grade on the other side of Harrison street, and that his bicycle was traveling at such speed that the defendant could not in the exercise of reasonable care have stopped his car so as to prevent the coasting bicycle from running into his automobile, and thus injuring the plaintiff, then he was not guilty of negligence."

"[7] No. 3 (given by the court of its own motion):

"The court instructs the jury that, notwithstanding they may believe from the evidence that the plaintiff's bicycle was coming down Seventh street grade very rapidly, and not under control, but that the defendant discovered his peril in time by the exercise of reasonable care to have stopped his car and thus avoided the accident, and that he failed to exercise such care, then he was guilty of negligence, unless they believe he acted in a sudden emergency, as defined in instruction No. 4."

No. 4 (given by the court of its own motion):

"The court instructs the jury, if they believe from the evidence that, when defendant, driving his automobile down Harrison street, approaching the intersection of Harrison and Seventh streets, discovered the bicycle of the plaintiff moving rapidly down Seventh street not under control, and that a sudden emergency was then presented to him of either going forward or stopping his car to avoid imminent collision, and that he undertook to speed up his car and thus avoid the danger, and that his action was such that a person of ordinary prudence might have done under a like situation, but that he failed to thus avoid the collision, he would not be guilty of negligence because another course might have been more judicious."

No. 5 (given by the court upon request of the plaintiff):

"The court instructs the jury that, if they find for the plaintiff, they may, in estimating the damages, take into consideration the bodily injury, disability, and disfigurement sustained by him, if any, and the permanent or temporary character thereof, and the pain and mental anguish caused by said injuries, if any, and fix the amount of damages at such sum as will be a just, reasonable, and proper compensation therefor, provided, however, such damages shall not exceed the amount sued for, to wit, $25,000."

We find no error in these instructions, inasmuch as they, in effect, told the jury that they could not find a verdict against the defendant unless they believed him guilty of negligence after having discovered that the plaintiff was in imminent peril. There was no error in refusing the...