Paytes v. Davis

• Decision Date: 19 March 1931
• Citation: 157 S.E. 557
• Court: Virginia Supreme Court
• Parties: PAYTES et al. v. DAVIS.

157 S.E. 557

PAYTES et al.

v.DAVIS.

Supreme Court of Appeals of Virginia.

March 19, 1931.

Error to Circuit Court, Orange County.

Suit by J. B. Davis against B. M. Paytes and others. Judgment for plaintiff, and the parties bring error and cross-error.

Reversed, and case dismissed.

S. M. Nottingham, of Orange, for plaintiffs in error.

E. H. DeJarnette, Jr., of Orange, for defendant in error.

HOLT, J.

On November 26, 1927, J. B. Davis was struck and injured by an automobile truck on a public road in Orange county. He brought suit and obtained a verdict for $500. which was reduced by the trial court to $300.

For the defendants it is said that the evidence supports no recovery at all, while the plaintiff charges that the judgment should have been for the full amount of the jury's verdict. This case is now before us on error and cross-error.

It turns upon the facts and not upon the law applicable thereto; about it there is little dispute; the instructions have not been copied into the record. Mr. Davis had occasion to go to the town of Orange and was on his way as a guest in a truck owned and driven by his friend, Mr. Bledsoe, when hurt. Mr. Bledsoe had been asked to take up and carry to Orange a can of cream set down on the roadside for him. This Bledsoe, for the moment, overlooked. He drove past it for a short distance and pulled up on the right-hand side of the road. Davis got out on bis right-hand side and was going back for the can when he was struck by another truck going in the opposite direction and driven by R. T. Lane. Mr. Davis first stated that the Bledsoe truck stopped twenty or twenty-five yards beyond the can; that he got out and walked around in front of the engine and stood there until a third truck which was following them had passed, when he started down the road, and had gotten opposite the can at the time of the accident. He also saidthat he walked down the right-hand side of the road and was about three steps from the can and about four and a half feet from the side drain or ditch when hit, and that the can was at least sixty yards from his truck. Again he said that he had walked about twenty yards before he was struck and that he did not cross the road directly, but in doing so bore to his right, that his hearing is not keen, that he did not look back, and was not then thinking about a car.

On cross-examination he said: "I was in the traveled way when I was struck. I gave no signal. There was no room between me and the edge of the ditch for a car to pass. I walked diagonally across the road. I walked more on the right side of the road than on the left. I had not started to cross when I was struck."

He also testified that "Lane said he saw me, and knew I did not see him."

He was hit on the right hip.

The discrepancies in this witness' judgment of distances and in the positions in which he places himself at the moment of the accident are immediately apparent. It is also to be noted that he states that he had crossed the road and was in four and a half feet of a drain on the far side when hit and that he "had not started to cross it when struck." In other words, he does not seem to have had any clear recollection about his movements on that occasion.

Mr. Bledsoe states that they went twenty-five or thirty yards beyond the can before he stopped; that Davis then got out on the right-hand side of his truck, walked around in front of the engine; and that he did not see him afterwards. While Davis stood there a neither truck overtook and passed them. About that time the Lane truck came up and sounded its horn about thirty yards in front of him. This truck was not then going rapidly and was stopped about thirty yards behind his truck and a little below where the can stood.

When Bledsoe next saw Davis, he was in the middle of the road, sixty or sixty-five feet back of the Bledsoe truck with Lane leading him to it. He seemed to have been struck by a fender, but there was nothing to show that he had actually been run over.

Lane testified in his own behalf, and said that he did not see Davis "until he walked right in front of my light. He stepped in front of my truck" and in front of the left-hand light. He was then coming swiftly across the road about twenty-five feet behind the Bledsoe truck. Witness did not see him until a moment before the impact and did not tell him that he did; he was traveling at a moderate rate of speed and stopped his car ten or twelve feet beyond the Bledsoe truck. At another place he said that the accident occurred twenty-four feet beyond that truck.

When this witness approached the Bledsoe truck, he slowed up for the approaching third truck which was then passing it, and blew his horn when about twenty yards away. He said that if Davis passed in front of the Bledsoe truck his failure to see him must have been because his vision was shut off by this third truck.

It will be seen that this witness also is confused as to distances. In one place he said that he stopped ten or twelve feet beyond the Bledsoe truck, and at another that he struck Davis twenty-four feet beyond it.

J. B. Cox was in the truck with Lane. His testimony is that Davis stepped out from behind the Bledsoe truck when he was struck and was not seen until he was within three or four feet of the front of their car. He also said that their truck was about ten feet from the Bledsoe truck when it stopped, and that Davis was fifteen or eighteen feet from it when struck. At another point he said that Davis was twelve or thirteen feet behind the Bledsoe car when hit, and at another that he might have been thirty feet behind it. These discrepancies in distances cannot be reconciled and it is not necessary that they be.

All of the evidence goes to show that the Lane truck was traveling about fifteen miles an hour and was twenty or thirty yards in front of the Bledsoe truck when Davis, who was waiting for the third truck to pass, started down the road to the milk can. He was sixty-two years old and presumably not walking very rapidly and so must have been hit within a short distance. If we accept as true, as we do, the statement...