Moon v. Hill

• Decision Date: 10 September 1965
• Citation: Moon v. Hill, 143 S.E.2d 892, 206 Va. 437 (1965)
• Parties: William James MOON v. Hanry R. HILL.
• Court: Virginia Supreme Court

Page 892

143 S.E.2d 892

206 Va. 437

William James MOON v. Hanry R. HILL.

Supreme Court of Appeals of Virginia.

Sept. 10, 1965.

Henry M. Sackett, Jr., Lynchburg, (Williams, Robertson & Sackett, Lynchburg, on brief), for plaintiff in error.

Paul Whitehead, Lynchburg, for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

BUCHANAN, Justice.

Henry R. Hill, plaintiff, filed his motion for judgment against William James Moon, defendant, for damages for personal injuries suffered by the plaintiff when an automobile driven by the defendant collided with a pickup truck occupied by the plaintiff. The defendant filed a cross-claim for personal injuries sustained by him in the collision. A jury returned a verdict for the plaintiff in the sum of $40,000, and in plaintiff's favor also on defendant's cross-claim. The court entered judgments in accordance with the verdict and defendant has appealed.

Defendant made six assignments of error which he says in his brief present the principal questions: (1) whether as a matter of law defendant was guilty of any negligence which was a proximate cause of the accident, or whether plaintiff was guilty of negligence which proximately contributed to the accident; and (2) whether the court erred in refusing Instructions F and F-2, offered by the defendant.

The accident happened about 6:55 p. m., February 9, 1963, on U. S. Highway 60, about nine miles west of the town of Amherst in Amherst county. The highway in that area ran generally east and west. Defendant was going west and driving a car owned by his brother, in which the brother, the brother's wife and their small son were passengers. Hill, the plaintiff, a maintenance superintendent for the State Highway Department, lived in his home a short distance north of the highway. A gravel driveway led from his home into the highway and spread out to a width of 45 feet at its junction with the road.

Photographs of the scene of the accident were introduced and also a plat made by an engineer showing a section of the highway to the east and to the west of the Hill entrance. The hard surface of the highway was 20 feet wide with shoulders six feet wide, which widened on the north side to eight feet near plaintiff's entrance and to twelve feet in the intersection. The engineer testified that from the entrance there was an unobstructed view of the road westward for a thousand feet. The road was straight for a distance of 625 feet west of the entrance, at which point there was a curve to the right of the traveler going west.

As the jury could have appraised the evidence, it disclosed the following facts:

Just before the accident the plaintiff got into his pickup truck expecting to drive east on Highway 60 to attend to his official duties. The turnaround in the driveway in front of his house was blocked by two other vehicles, and he backed down his driveway so his truck faced eastwardly and stopped within the driveway about parallel to the highway, with his right wheels four feet from the hard surface. Before he stopped backing he saw lights coming around the curve to the east and when he stopped the lights were 300 to 400 feet away, too close for him to try to cross and enter the eastbound lane. The lights of his truck were on low beam as he waited. As the approaching car came closer, he saw its lights begin to bounce as if the car were on rough surface, and then it hit him. When he was struck his truck was standing just where he stopped. He had not yet straightened his wheels to go forward and they were still turned as they were when he backed to face eastward. The shoulder of the road at that point was five feet wide, he thought, and his right wheels might have been a foot on the shoulder. Plaintiff's truck was knocked thirty to fifty feet west by the force of the collision and defendant's car was lodged against a tree at the west end of plaintiff's driveway with its left wheels five to six feet north of the hard surface. On the ground opposite the right-hand door of the defendant's car was a pint bottle of whiskey with a small quantity removed. There were two beer cans outside and two inside of the defendant's car. There was an odor of alcohol on defendant's breath some two hours later in the hospital.

The brakes on the defendant's car had not been applied and within the driveway there was a ridge leading off from the hard surface and made by the left front wheel of the defendant's car.

Defendant's car had started leaving the hard surface 160 to 170 feet east of the point of collision and veered over into a ditch to its right, and when it reached the Hill entrance its right wheels were on the bank about twelve inches above the ditch.

There was no other traffic on the road. The weather was clear and the road was dry. Defendant testified that as he came around the curve east of the point of accident he was running between 45 and 50 miles an hour and had traveled fifteen or twenty car lengths on the straight stretch before he saw any lights, and then 'all at once the lights hit me in the eyes--it was a glare, and I couldn't see.' Yet, without applying his brakes or diminishing his speed, he drove off the hard surface to his right and struck the plaintiff's truck as it was standing in the driveway. In the hospital some two hours after the accident the defendant told the trooper that when he came around the curve he saw the headlights of the truck, which appeared to be on bright and they blinded him; that he 'thought they would go some place and he kept driving and blew his horn and flashed his headlights up and down.' He said nothing about applying his brakes.

There was ample evidence to establish that the defendant was guilty of negligence which was a proximate cause of the very serious injuries and disfigurement suffered by the plaintiff. Richmond Greyhound Lines v. Brown, 203 Va. 950, 128 S.E.2d 267; Allen v. Brooks, 203 Va. 357, 124 S.E.2d 18; Unger, adm'x v. Rackley, 205 Va. 520, 138 S.E.2d 1.

The defendant argues that as a matter of law the plaintiff was guilty of negligence which was a proximate cause of the accident.

He says, first, that the plaintiff violated his common law duty to avoid the foreseeable accident. He argues that the plaintiff, instead of backing and turning as he did, could have turned before reaching the highway and have headed into the highway at right angles so that his lights would not have shone into the eyes of the defendant. But the jury could answer that the plaintiff's lights were on low beam and turned so they did not shine in defendant's eyes, and that no reasonable person would have foreseen that under the circumstances described the driver of an approaching vehicle would drive off the hard surface and strike a vehicle sitting still four feet away from the hard surface.

Defendant next contends that plaintiff was negligent as a matter of law because he stopped his truck in violation of § 46.1-248 of the Code. Paragraph (a) of that section provides that: 'No vehicle shall be stopped in such manner as to impede or render dangerous the use of the highway by others, * * *.' Paragraph (b) provides that: 'No vehicle shall be stopped except close to and parallel to the right-hand edge of the curb or roadway * * *.'

This section, we think, has reference to stopping on the traveled portion of the highway and is not applicable to the facts of this case. Paragraph (a) provides that it does not apply to stopping in an emergency resulting from accident or breakdown, but in that event the vechicle shall be removed from the 'roadway' to the shoulder as soon as possible and removed from the shoulder without unnecessary delay; and Paragraph (b) refers to stopping on the 'roadway.' Section 46.1-1 (10a) defines 'roadway' as 'That portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the shoulder. * * *'

Next, defendant argues that plaintiff violated § 46.1-273 of...