Morris v. Dame's Ex'r

• Decision Date: 16 November 1933
• Citation: 171 S.E. 662
• Parties: MORRIS . v. DAME'S EX'R et al.
• Court: Virginia Supreme Court

171 S.E. 662

MORRIS .

v.DAME'S EX'R et al.

Supreme Court of Appeals of Virginia.

Nov. 16, 1933.

Error to Circuit Court, Roanoke County.

Action by L. Hunter Morris, Jr., against F. C. Dame and the Town of Christiansburg, in which F. C. Dame's executor was substituted after the death of defendant Dame. Judgment for defendants, and plaintiff brings error.

Affirmed as to defendant Dame's executor and reversed as to the defendant Town of Christiansburg and case remanded for a new trial.

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

Milton P. Bonifant and M. J. Fulton, both of Richmond, for appellant.

Sowder, Roop & Spiers and W. H. Colhoun, both of Christiansburg, for appellee Town of Christiansburg.

Furman B. Whitescarver, of Salem, and H. M. Pox, of Roanoke, for appellee Dame's Ex'r.

EPES, Justice.

This is an action, instituted by notice of motion for judgment, which was brought by L. Hunter Morris, Jr., a young man nineteen years old, suing by his next friend, against F. C. Dame and the town of Christiansburg. Its object is to recover damages for personal injuries received by Morris in a collision which occurred late in the afternoon of April 18, 1930, between an automobile truck owned by Dame and a truck owned by the town of Christiansburg. The Dame truck was being driven by one of his workmen, and the truckof the town of Christianstmrg was being driven by one of its employees. Neither of the drivers was made a party defendant. The plaintiff was riding in the Dame truck with the permission of its driver.

Dame died soon after the action was instituted, before he had filed any pleadings. The Farmers' National Bank of Salem qualified as his executor, and upon its motion the case was revived against it as such.

The case was submitted to a jury on the evidence introduced by the plaintiff and that introduced by the town of Christiansburg. Dame's executor introduced no evidence, taking the position that the evidence was insufficient to support a verdict finding Dame liable. The jury returned a verdict for both defendants, in accordance with which the court entered judgment. To this judgment the plaintiff has applied for and been granted a writ of error against both defendants.

The plaintiff's notice, when read in the light of the evidence, alleges that the collision was due to the concurring negligence of the drivers of the Dame truck and the Christiansburg truck, and to the fact that the Dame truck was being operated "with inadequate and improperly adjusted brakes."

The town of Christiansburg filed no affidavit denying that it owned, operated, or controlled one of the trucks. See section 6126, Code Va. 1919.

The defenses made by it were that its driver was not guilty of any negligence; that the sole proximate cause of the collision was the negligence of the driver of the Dame truck; and that the plaintiff was guilty of contributory negligence which barred any recovery by him. The contributory negligence charged by it is (1) that the plaintiff failed to keep a proper lookout, and (2) that he "was standing up in the rear part of the said Dame's truck when he should have been seated, and but for said standing up * * * the plaintiff would not have been hurt or injured."

Dame's executor filed a plea of the general issue, and also what amounts to a plea of contributory negligence. The charges of contributory negligence contained in its plea are (1) that the plaintiff "was guilty of negligence in riding in, or on, or about said truck at a place other than the seat built for and incidental to the operation of the said truck, " and (2) that he "was standing up in the body of said truck, and/or was otherwise located in, on or about said truck at such a place and in such a manner as to be in constant danger of injury from the operation of said truck on the highway."

Dame's executor also filed an affidavit made by John R. Keister. After stating that Keister is the cashier and trust officer of Farmers' National Bank, the executor of F. C Dame, and "is entitled as such officer to make this affidavit on behalf of said executor, " the affidavit reads:

"Upon information and belief, this affiant

says:

"That the truck of the defendant's decedent (F. C. Dame) was not at the time of the happening of the alleged injuries to the plaintiff, being operated or driven by defendant's decedent, F. C. Dame.

"That the plaintiff, L. Hunter Morris, Jr., was not at said time riding in, on or upon said truck with the knowledge, permission or consent, or by or with the authority, direct or indirect of defendant's decedent, F. C. Dame.

"That the driver of defendant's decedent's (F. C. Dame's) truck had no authority except to drive said truck from Wytheville to Roanoke, and that said driver had not and was not by defendant's decedent, F. C. Dame, authorized to permit plaintiff to ride in, on or upon said truck."

The following account given by the plaintiff (whom we shall hereafter refer to as Morris) and his witnesses of how he came to be riding in the Dame truck at the time of the collision is uncontradicted.

Morris lived in Richmond, Va., and was a cadet at the Virginia Polytechnic Institute at Blacksburg. On the afternoon of April 18, 1930, the cadets were leaving to go to their homes and other destinations for the Easter holidays. That afternoon Morris, A. M. Potts, R. K. Allen, and several other cadets left Blacksburg in a taxicab and went to Christiansburg, where they intended to solicit free rides in automobiles going towards their several destinations.

As they got out of the cab in Christiansburg, Morris saw a truck approaching along the street which forms a part of the Lee highway, going towards Roanoke. This truck belonged to F. C. Dame, and was being driven by one of his workmen. It was a one-ton Republic freight truck with a cab in front for the driver and an open-top body in the rear for carrying freight. The sides of the body were of such height that a person sitting on the top railing of a side could rest his weight on his feet on the floor. In the body of the truck were some scrap iron, pipe or tile, and a few tools. The driver and another man were sitting on the seat in the cab and there were three men in the body of the truck.

Morris, followed by Potts and Allen, ran across the street, and Morris gave a signal with his hand indicating that he wanted to go towards Roanoke. The truck stopped about 20 feet beyond them and the driver looked back. They ran up to it and got on it, Potts being the last to get on. Before he had gotten "completely on, " the driver look-ed back and said, "Is everything OK?" When Potts had gotten on Morris said, "Everything is OK, let her ride;" and the driver drove east, towards Roanoke. The collision occurred about a mile east of Christiansburg.

No other evidence was introduced which tended in the remotest degree to show that the plaintiff was riding on the truck with Dame's knowledge, permission, or consent, or that the driver of the truck had any actual, implied, or ostensible authority to invite or permit him, or any one else, to ride in it

There is no material conflict in the evidence as to the place at which the collision took place or the physical features of its surroundings. The chief difference between the testimony introduced on this phase of the case by the plaintiff and that introduced by the town of Christiansburg is that the surveyor introduced by the town gives actual measurements, while in most instances the plaintiff's witnesses give estimates. The estimates, however, are in substantial accord with the measurements of the surveyor.

About a mile east of Christiansburg, the Lee highway, which along this part of its course runs approximately east and west, crosses a spur track of the Norfolk & Western Railway Company, which runs approximately north and south. At this crossing there is a large railroad crossing sign which is plainly visible to a person traveling east on the Lee highway at any place within 1, 200 feet, or more, west of the crossing.

A few feet west of this crossing a side road leads off from the north side of the Lee highway, and runs, about parallel with the railroad's spur track, to the plant of the Standard Oil Company. Further west (140 feet west of the crossing) a side road leads off from the south side of the highway and, roughly paralleling the railroad's spur track, runs southward about 400 feet to the Christiansburg Supply Company's plant, where it ends. This road, which we shall designate the freight-yard road, enters but does not cross the Lee highway, and opposite its junction with the highway there is a bank 9 feet high along the north side of the highway. The collision occurred on the north side of the Lee highway immediately opposite the mouth of the freight-yard road, out of which the Christiansburg truck had come. Along there the hard-surfaced part of the highway is 18 feet wide, on each side of which are dirt shoulders 6 feet wide.

On the south side of the highway and east of the freight-yard road is a Ailing station and restaurant. Further south, on the east of the freight-yard road is a much used freight yard of the Norfolk & Western Railway Company, and the plants of the Old Domin ion Canning Factory and the Christiansburg Supply Company. The only buildings or obstructions to the view on the west side of the freight-yard road are two buildings of the Texas Oil Company, which stand in an area inclosed by a high wire fence that extends to a line about 40 feet from the southern edge of the hard-surfaced part of the Lee highway. When a person is standing in the freight-yard road at any point within 38 feet of the southern edge of the hard-surfaced part of the Lee highway, he has a clear view to the west along the highway for 1, 200 feet or more.

[I] The freight-yard road is not a state or county road; but it is "open to the use of the public for the purpose of vehicular travel" and is much used by the public in going to and...