Petcosky v. Bowman, s. 4376
| Decision Date | 14 September 1955 |
| Docket Number | Nos. 4376,4377,s. 4376 |
| Citation | 197 Va. 240,60 A.L.R.2d 199,89 S.E.2d 4 |
| Parties | , 60 A.L.R.2d 199 PAUL PETCOSKY v. DONALD C. BOWMAN AND SAMUEL ROY DODSON. SAMUEL ROY DODSON v. DONALD C. BOWMAN AND PAUL PETCOSKY. Record |
| Court | Virginia Supreme Court |
Bowles, Anderson & Boyd and Seymour J. Spelman, for plaintiff in error, Petcosky.
J. Segar Gravatt; W. P. Bagwell, Jr.; Shewmake, Gary, Goddin & Blackwell and Goolrick, Ashby & Whitticar, for defendants in error, Bowman and Dodson.
Moncure and Cabell, for plaintiff in error, Dodson.
Bowles, Anderson & Boyd; Seymour J. Spelman; J. Segar Gravatt; W. P. Bagwell, Jr.; Shewmake, Gary, Goddin & Blackwell and Goolrick, Ashby & Whitticar, for defendants in error, Bowman and Petcosky.
This litigation arises out of two collisions involving five motor vehicles which occurred on U.S. Highway No. 1, just south of Stafford Courthouse, about 9:00 o'clock p.m. on Friday, August 31, 1951. For a distance of one-fourth of a mile north and about one-half mile south of the scene the highway had been recently resurfaced for a width of forty feet. The usual white lines indicating the lanes of traffic had not been painted on the surface. The road was dry and traffic thereon was quite heavy.
Shortly before the collisions four vehicles were proceeding in a single line southwardly toward the crest of a hill. At the head of the line was a trailer-truck owned by C. W. Marsh and driven by his employee, James Hodges. Immediately behind the truck was a passenger car driven by Donald W. Todd. Next in line was a passenger car driven by Samuel Roy Dodson, and last in line was a taxicab driven by Donald C. Bowman. A passenger car driven by Paul Petcosky and owned by Richard I. Richmond was being driven northwardly, approaching the crest of the hill and the scene of the accident.
As the truck, which was driven in the extreme western southbound lane, approached the crest of the hill the car driven by Todd overtook and safely passed it on the left. The driver of the Dodson car, next in line, then undertook to pass the truck in a similar manner. While undertaking this passing the left rear fender of the southbound Dodson car was struck by the left front of the northbound Petcosky car. As the result of this collision the Petcosky car veered to its left, crossed the center of the road, and collided head-on with the taxicab driven by Bowman. The Bowman and Petcosky cars were demolished in the collision and came to rest north of the crest of the hill, with their front ends in the passing or easternmost southbound lane. Both Bowman and Petcosky received severe injuries.
To recover damages for his injuries, Bowman filed a motion for judgment against Petcosky and against Richmond, the owner of the car driven by Petcosky; Hodges and Marsh, the driver and owner, respectively, of the truck; and Dodson, the driver of the Dodson car. Petcosky filed a cross-claim against Dodson seeking to recover damages for his (Petcosky's) injuries.
After the evidence had been heard by a jury the trial court struck the evidence as to Richmond, Hodges and Marsh, submitting to the jury to decide, (1) whether Bowman was entitled to recover of Petcosky or Dodson or both, and (2) whether Petcosky was entitled to recover of Dodson on the cross-claim. The jury brought in a verdict of $15,000 in favor of Bowman against both Petcosky and Dodson, and a verdict against Petcosky on his cross-claim against Dodson. Motions to set aside the verdicts were overruled and judgment was entered thereon. On a single record we granted separate writs of error to both defendants, Petcosky and Dodson. The parties will be referred to as they appeared in the lower court.
There is no assignment of error to the action of the trial court in striking the evidence as to Richmond, the owner of the car which was being driven by Petcosky, and against March and Hodges, the owner and driver, respectively, of the truck.
On the merits, the main contention of the defendants, Petcosky and Dodson, is that the trial court erred in its rulings on the instructions and motion for a new trial in holding that the evidence was sufficient to sustain a finding that they were guilty of concurrent negligence which proximately caused the injuries of the plaintiff, Bowman. These defendants concede that the negligence which proximately caused the first collision between the Petcosky and Dodson cars also proximately caused the second collision between the Petcosky and Bowman cars. They further concede that the plaintiff, Bowman, was free of negligence and that under the evidence the jury might have found in his favor against either defendant. They insist, however, that there is no evidence that they were guilty of concurrent negligence and thus jointly liable to the plaintiff.
Because of the nature and severity of his injuries, Bowman had no recollection of the circumstances of the accident. His counsel called as adverse witnesses Petcosky, Dodson and Hodges, the drivers of the respective vehicles involved.
Petcosky, a service man on leave from Fort Bragg, North Carolina, testified that he approached the crest of the hill, going north, at about fifty miles per hour. Although he was not overtaking and passing any other vehicle proceeding in the same direction, he was driving in the center or passing northbound lane near to but to the east of the center line of the road. He saw the Todd car overtake and pass the truck and saw the Dodson car attempt to do likewise. He said the Dodson car made a wide arc around the truck in passing it and came across the center line of the road into his (Petcosky's lane. He (Petcosky) attempted to turn his wheel to the right in an effort to avoid a collision but did not have sufficient time to do so, and the left front of his car struck the left rear fender of the Dodson car. This collision threw the Petcosky car 'out of control- ' and caused it to veer to the left, cross the center line of the road, and collide head-on with the southbound Bowman taxicab which was proceeding in its proper lane.
Petcosky further testified that the four passengers in his car were asleep at the time and knew nothing of the circumstances. None of them testified.
Dodson testified that he had been following the Todd car at a speed of about forty-five miles per hour for several miles. After the Todd car overtook and passed the truck he (Dodson) undertook to do likewise. He proceeded alongside the truck in a straight line and when he was opposite the cab of the truck he saw the lights of the Petcosky car as it came over the crest of the hill headed for his car. The Petcosky car came over into his (Dodson's) lane and in the effort to avoid a collision with it he (Dodson) cut sharply to his right and passed 'very close' in front of the truck. As he did so the left front of the Petcosky car sideswiped the left rear fender of his (Dodson's) car. Despite this collision Dodson brought his car to a stop ahead of the truck. He insisted that at no time did his car pass to the left of the center line of the road. The testimony of two passengers in the Dodson car corroborated his testimony.
Todd testified that as he was passing the truck the Petcosky car came near colliding with his (Todd's) car, missing it only about one foot. The Todd car came to a stop ahead of the Dodson car.
Hodges, the driver of the trailer-truck, testified that his vehicle carrying a load of lime in paper bags was proceeding southwardly in its extreme right-hand lane at a speed of about thirty-five miles per hour. As he was going over the crest of the hill the Dodson car came abreast of the left side of the cab of the truck, attempting to pass it. He said that the Dodson car was 'swaying' or 'zigzagging' as it passed the cab of the truck, but that it cleared the truck and stopped about seventy-five feet ahead of it. According to Hodges, the collision between the Petcosky and Dodson cars did not take place alongside or in front of his cab. Indeed, he said, he did not see the collision or hear the crash. After bringing his truck to a stop Hodges found that one of the other vehicles had struck the rear of the trailer and torn some of the bags, causing the lime contents to spill onto the pavement.
Clinton R. Swann, a State trooper, who appeared on the scene shortly after the accident, testified that there were no skid marks on the pavement or other marks which indicated where the collision between the Petcosky and Dodson cars had occurred. He described the location of the badly damaged Petcosky and Bowman cars, as has been stated, in the inside southbound traffic lane. The trooper further testified that while the pavement had been laid in four ten-foot sections which upon close inspection would disclose seams or dividing lines of the lanes, such dividing lines were not discernible at night by the driver of a motor vehicle.
The argument of the defendants, Petcosky and Dodson, that there is no evidence to sustain a finding that they were guilty of concurrent negligence runs thus: The evidence in favor of Petcosky is that he was always on his proper side of the center line of the highway and that the Dodson car crossed the center line and caused the first collision; on the other hand, the evidence in favor of Dodson is that he was always on his proper side of the road and that the Petcosky car crossed the center line and caused the collision; since both vehicles could not have been operated on the wrong side of the center line at the same time, there is no evidence of concurrent negligence on the part of the two drivers. Hence, they say, the jury's verdict should not stand because it has simply failed to fix the cause of the first collision which brought about the second.
The weakness in this argument is that under the evidence the negligence of the defendants did not necessarily consist in the single fact that one or the other was...
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