Neal v. Spencer
| Decision Date | 14 June 1943 |
| Docket Number | Record No. 2660. |
| Citation | 181 Va. 668 |
| Parties | WALKER NEAL v. B. M. SPENCER, ADM'R, ETC. |
| Court | Virginia Supreme Court |
Present, Campbell, C.J., and Holt, Hudgins, Browning, Eggleston and Spratley, JJ.
1. APPEAL AND ERROR — Scope — Statement of Facts Favorable to Party with Verdict. — Where a plaintiff comes to the Supreme Court of Appeals with the verdict of the jury approved by the trial court, the facts must be stated in the light most favorable to the plaintiff, that is, the statement is made in accord with the evidence introduced by the plaintiff.
2. EXPERT AND OPINION EVIDENCE — Admissibility of Expert Evidence — Reasons. — In matters which are not of common knowledge, the opinion of experts must be accepted. There is no other way in which an intelligent conclusion can be reached, and so evidence of this kind is competent unless it is palpably absurd, and it is not made incompetent by the fact that other experts may have reached another conclusion. Always it should be scrutinized with care, but the manner in which it is weighted has nothing to do with its admissibility.
3. EXPERT AND OPINION EVIDENCE — Weight of Expert Evidence — Question of fact. — Where both plaintiff and defendant introduce expert witnesses as to the cause to the death of plaintiff's decedent, it is within the province of the jury to accept the evidence of the plaintiff and reject the evidence of the defendant.
4. AUTOMOBILES — Proximate Cause — Accident as Proximate Cause of Death — Case at Bar. — In the instant case, an action for injuries received in an automobile collision resulting in the death of plaintiff's decedent, the evidence showed that prior to the accident plaintiff's decedent was a healthy, robust, young man, twenty-one years old, six feet two inches tall and weighing one hundred and fifty to one hundred and sixty pounds. The day after the accident he complained of his condition and several days later lost consciousness while at work. Decedent's father testified that decedent lost weight at the extent of almost a pound a day after the accident, and approximately one month after the accident died suddenly. Medical experts differed as to the cause of death, but the jury returned a verdict for six thousand five hundred dollars which was approved by the trial court.
Held: No error.
5. AUTOMOBILES — Negligence — Speeding and Failure to Keep Proper Lookout — Case at Bar. — In the instant case, an action for death of plaintiff's decedent resulting from an automobile accident, the evidence showed that plaintiff's decedent about one hundred and five feet before reaching an intersection, held out his hand to indicate a right turn and slackened his speed by applying the brakes on his car, thus making his stop light flash on. Defendant testified that he was following decedent's car at a speed of from fifty to fifty-five miles per hour, but another occupant of decedent's car testified that defendant was driving at a speed of from sixty to seventy miles an hour, judgment this from the noise made by defendant's car in skidding immediately prior to the impact. Skid marks indicated that defendant's car skidded between one hundred and twenty-seven and one hundred and forty-one feet before the impact. There was no other traffic on the road to prevent plaintiff from turning out to avoid the collision.
Held: That there was sufficient evidence to impress the jury that defendant was driving at an unsafe rate of speed; that he did not have proper control of his car and that he was not keeping a proper lookout. There was not sufficient evidence to fix upon plaintiff's decedent either contributory or concurring negligence.
6. AUTOMOBILES — Duty of Drivers — Duty to Keep Lookout. — While the driver of a vehicle must be constantly on the watch for dangers in front, he is not, if he is on his proper side of the highway, required to maintain such a lookout as to vehicles coming up from the rear, and the rule is that, when two automobiles are being driven along a public road in the same direction, the driver of the front car owes no duty to the car in the rear except to use the road in the customary way, and until he has been made aware of the presence of such rear car by signal or otherwise he may assume, either that there is no other vehicle in his rear, or that, if there is one there, it is under such control as not to interfere with his free use of the road in any lawful manner.
7. AUTOMOBILES — Duty of Drivers — Duty of Driver in Leading Car as to Following Cars. — Under the statutes regulating the side of the road travelers shall use in passing, where two automobiles are traveling in the same direction the one in front has the superior right and may keep its position in the center of the highway if there is sufficient space on its left to enable the approaching car safely and conveniently to pass.
8. APPEAL AND ERROR — Affirmance — Verdict Approved by Trial Court. — Where a party litigant comes to the Supreme Court of Appeals fortified by the verdict of a jury, approved by the trial court, he occupies the strongest position known to the law.
Error to a judgment of the Circuit Court of Halifax county. Hon. N. S. Turnbull, Jr., Judge presiding.
The opinion states the case.
W. Moncure Gravatt and James S. Easley, for the plaintiff in error.
George E. Allen and W. E. Neblett, for the defendant in error.
The subject of this case is an automobile accident which happened in Charlotte county, near Barnes Junction, on route 15, on September 27, 1941. A 1941 Chevrolet coach was driven by M. Houston Kirk, since deceased, whose representative instituted this suit against Walker Neal, who was driving a 1941 Dodge coach. They were traveling in the same direction, south. The two automobiles will be referred to as the Kirk car and the Neal car.
The Kirk car entered route 15 at Barnes Junction by the highway leading from Chase City. The Neal car entered the same route by the highway leading from Clover. The Kirk car turned into route 15 first. It was followed by the Neal car approximately a mile. The two cars were traveling from 60 to 90 feet apart. They were approaching a road numbered 631, which intersected route 15 at an oblique angle of about 30 degrees. Kirk and his companion, Harding Walker, intended turning in on this road to visit some friends. About 105 feet before reaching this intersection Kirk held out his hand to indicate a right turn and slackened his speed by applying his brakes. This movement made his stop light flash on. His speed was reduced to about 20 miles per hour and when he was about 45 feet from his turning point the Neal car struck the right of the rear end of his car and knocked him out of his seat and broke the seat hinges and also its fastening to the floor. It was about dark when the accident happened and the lights were on on both of the cars. The Neal car skidded between 127 and 141 feet before the impact. This was shown by skid marks which were plainly discernible after the accident. Kirk recovered from the shock sufficiently to stop his car when it had gone about 60 feet. The occupants of the Kirk car said that they were not hurt.
Kirk was 21 years old. He was 6 feet 2 inches tall and weighed from 150 to 160 pounds. He was rated at school as a 5 point boy, which indicated sound and robust health. He had never been sick or ill and was accustomed to doing all sorts of farm work. The evidence fully justifies the statement that he was physically fit prior to the accident.
The accident happened on Saturday evening and on the next morning at Sunday School Mr. J. L. Davis, a merchant and farmer in the neighborhood, noticed that "he seemed to be in right bad condition." Some ten days after the accident Mr. E. T. Spencer, who operated a school bus, saw him at church and asked him if he was hurt very badly. He said: "Shook me up right much, hurt my neck and it hurts me to turn my neck, my shoulder and my back."
His father, who was in Canada at the time, but who came home on the following Tuesday, was asked if he noticed any difference in him and he said that he certainly did, that he was trembling as he tried to walk, and was pale, haggard looking, dark circles under his eyes, and he could not walk steadily. Another difference was that he could not work as he was accustomed to. He said that he lost weight to the extent of almost a pound a day and that eleven days before his death, in the act of tying some tobacco, he reached over to get some and that he fell back in a faint, losing consciousness for a little while.
On the 19th of October he went to see the family physician, Dr. Bailey, who, after an examination, made the following statement: This doctor said that he had never before been called to see him on any occasion for sickness of any kind.
Mr. Paschall, principal of the Victoria High School, testified that the deceased was at an entertainment at his school for the benefit of the Parent-Teachers Association about a week preceding his death and that he asked him how he was getting along and he said that he wasn't feeling very well, that he couldn't sleep; that he came down there with the hope of diverting his mind, and that he got up and staggered out of the auditorium for fresh air.
On Saturday, the 27th of October, young Kirk drove with his mother and father to North Carolina to visit some relatives. The place in North Carolina was some 200 miles distant. Before deciding to take this trip the young man went to see Dr. Bailey to obtain his...
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