Messick v. Mason

• Decision Date: 19 March 1931
• Citation: 157 S.E. 575
• Court: Virginia Supreme Court
• Parties: MESSICK. v. MASON et al.

157 S.E. 575

MESSICK.

v.MASON et al.

Supreme Court of Appeals of Virginia.

March 19, 1931.

Error to Circuit Court, Elizabeth City County.

Action by Virginia Messick, an infant, against Jack Mason and another. Judgment for defendants, and plaintiff brings error.

Affirmed.

Argued before PRENTIS, C. J., and CAMPBELL, HOLT, EPES, and HUDGINS, JJ.

Frank Kearney, of Phoebus, and J. Winston Read, of Newport News, for plaintiff in error.

Montague & Holt, of Hampton, for defendants in error.

EPES, J.

Virginia Messick, an infant 7 years old, brought her action of trespass on the case in the circuit court of Elizabeth City county against Jack Mason and Thomas Mason to recover $5,000 damages for injuries received by her when she was struck on October 26, 1927, by a Ford truck owned by Jack Mason, which was being driven by his son and agent, Thomas Mason, along the Kecoughtan road.

The evidence shows Virginia Messick was very seriously injured by this automobile. She was knocked down and badly bruised, and received serious internal injuries. Her liver was ruptured, and she developed a paralytic distention of the bowels as a result of the blow. She was in the hospital about a month, during which time she had to undergo two serious abdominal operations, in the second of which about six inches of her bowel had to be removed. She suffered intensely, and the physician who treated her says, "The child's condition was so very bad it was almost a hopeless case, very discouraging, but she did make a good recovery * * * and she has had a moderate degree of health ever since." At the time of the trial, December 17, 1928, it had been about nine months since she had required any medical treatment or attention on account of the injuries she received, and she was back at school doing well in her studies.

The jury returned a verdict of $500 in favor of the plaintiff against both defendants.

On motion of the defendants the court set aside the verdict on the ground that the evidence fails to establish any negligence upon the part of the defendants or either of them, and entered final judgment for the defendants. To the judgment Virginia Messick assigns error. The only question raised by the assignment of error is whether the evidence is sufficient to support a verdict finding Thomas Mason, the driver of the car, guilty of negligence.

So far as it relates to the question of negligence and the circumstances surrounding the accident, the evidence introduced by the plaintiff is as follows:

On the afternoon of October 26, 1927, between 2 and 2:30 o'clock, Virginia Messick, then 7 years old, was returning home from the Armstrong school, which is situated between the cities of Hampton and Newport News, in a truck used for the transportation of children to and from this school, which was driven by Quinby Collier. This truck, which we shall call the Collier truck, was traveling west (that is, toward Newport News) on the Kecoughtan road, the main highway between Hampton and Newport News; and the Mason car was traveling east (that is, toward Hampton).

The Collier truck had no sign or insignia on it to show or indicate that it was a school truck or bus, or was being used for the transportation of school children; and there was nothing in the appearance of the truck to indicate to a person seeing it on the road that it was a school truck or bus. The body was entirely closed at the back and on the sides by curtains which had no windows or opening in them, except a small window in the back curtain. The sides and back of the body were covered with wire netting over which the curtains were drawn. At the front was a cab for the driver such as those with which trucks are commonly equipped. On the left side this cab had a long narrow window fitted with glass. On the right side it had a door with a glass window at the top of it, which was the only door to the truck.

The Collier truck had three seats in it for the children to sit on, one on each side and one down the center. It was practically filled with children, when it stopped at the point at which Virginia Messick was injured, most of whom were seated, but some of whom were standing up by the driver. This was the first stop the truck made after it left the school.

As the Collier truck approached the point at which Virginia Messick was injured, another school truck or bus, driven by J. A. Baines, which was transporting children from another school, the George Wythe school, was approaching that point from the opposite direction, going in an easterly direction towards Hampton.

When the Wythe school bus was about 100 yards from where the Collier truck stopped, a Ford truck, driven by Thomas Mason, overtook and passed the Wythe school bus. Mason's truck was then traveling approximately 25 to 30 miles an hour, and did not increase its speed materially, if at all, from there to where it struck Virginia Messick.

The Kecoughtan road is here straight for a long distance; the afternoon was clear; and there was nothing between the Wythe school bus and the Collier truck to prevent those in the Wythe school bus or Mason from seeing the Collier truck or any one in the roadway who was not behind the Collier truck.

The Collier truck stopped on the right-hand side of the road, and some children, including Virginia Messick, got off. They all got out the door at the front, on the right-hand side of the truck. The evidence introduced by the plaintiff is not definite as to the number of ' children who got off, and does not show the order in which they got off, or, except as to Robert Wallace and Virginia Messick, whatbetween the time they got off and the time Virginia was struck.

J. A. Baines, who was driving the Wythe school bus, says, "I reckon * * * there was two or three, four or five" children who got off that day at this stop; "they were right at the street where he stops." He does not testify, however, as to when, in relation to the time of the accident, these children got off, or whether he saw or could see any of the other children before he saw Virginia Messick or not. But he testifies positively that he did not see Virginia Messick until she had come around from behind the Collier truck and was out in the road beyond the Collier truck.

Carroll Todd, a school boy riding in the Wythe bus and standing up beside Baines, the driver, testifies that he noticed Mason's car when it passed the Wythe bus; that he had a clear view in front; that he saw the Mason car strike Virginia Messick; and that as soon as the accident happened he got off the Wythe bus and ran down to where the accident occurred. He says that "about six or eight" children got off the Collier bus, but his testimony cannot be said to be that he saw any of the other children until either just at the time or a little after he saw Virginia; and his testimony is very positive that he did not see Virginia until just a moment before she was struck, practically just as she was struck.

Among the children who got off the Collier truck was Robert Wallace, aged 12. He did not see Virginia get off or after she got off until after she had been struck, and does not know whether she got off before or after he did. He says, "I got off and walked straight down the road, on the same side, the right-hand side, " and had gone about "15 or 20 feet up the road" when I "heard the brakes screak and heard her (Virginia) scream." He estimates that when the Mason truck passed him it was going "about 25 miles an hour."

When Virginia got off the Collier truck, she passed along the right side of the Collier truck to the back of the truck, around behind the truck, and on across the road toward the opposite side. When she was "pretty well across the road, " the right front fender of the Mason truck struck her.

In reply to the question, "Did she (Virginia) run or walk across the highway?" Baines, who had testified that he did not see her until she came out from behind the Collier truck into the road, says, "I think she was walking." This is all of his testimony on this point, and the only testimony in the record even tending to show that Virginia was walking when she was going across the road.

Mason put on his brakes before he hit the child, and went less than two car lengths after he put on his brakes before he brought his car to a stop. Baines says, "He stopped his car that quick that the child was pretty close to the rear wheels when Mr. Collier picked it up."

The only evidence introduced by the plaintiff as to what Thomas Mason actually saw as he approached the point of the injury is the following:

"Q. Did he (Thomas Mason) make any statement to you as to whether he did or did not see the bus...