Poole v. Kelley

• Court: Virginia Supreme Court
• Writing for the Court: HOLT
• Citation: Poole v. Kelley, 162 Va. 279, 173 S.E. 537 (1934)
• Decision Date: 22 March 1934
• Parties: POOLE. v. KELLEY.

173 S.E. 537

POOLE.

v.KELLEY.

Supreme Court of Appeals of Virginia.

March 22, 1934.

Error to Circuit Court; Nottoway County.

Action by motion for judgment by Mattie L. Kelley, administratrix of Samuel L. Kelley, deceased, against George H. Poole. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before CAMPBELL, O. J., and HOLT, HUDGINS, BROWNING, and CHINN, JJ.

Allan Epes, of Blackstone, for plaintiff in error.

W. Moncure Gravatt, of Blackstone, and H. H. Watson, of Crewe, for defendant in error.

HOLT, Justice.

On the afternoon of March 16, 1932, Samuel L. Kelley, plaintiffs intestate, was killed in an automobile accident. His administratrix has recovered against the driver of the car in which he rode a verdict and judgment of $7,500.

George H. Poole took Kelley, a possible purchaser, to look at a house in the town of Crewe which Poole had for sale and in which he was interested.

The motion for judgment charges that, after this inspection, Poole, with Kelley as his guest, drove out towards Burkeville. The car in which they rode was a comparatively new one, a Hudson eight-cylinder sedan in good mechanical condition. Kelley on the front seat sat by the defendant, George H. Poole, and on the rear seat sat Poole's brother, Harry. The road itself is paved with sand, gravel, and tar, and was in good condition. Its paved surface was 17 ¹/₂ feet wide with a dirt shoulder of about 6 feet on each side. These shoulders were graded up to the paved surface, sloped gently away, and were in good condition. The day was clear, and the road was dry.

On the north side of the road, and at the end of the corporate limits of Crewe, Dade street intersects the highway. At that corner is Jennings' filling station, and it was there that the Poole car passed a car in which were Miss Minnie Stone and Miss Dorothy Lush. The Poole car next passed a car driven by W. P. Bostick. All cars were west-bound. The Bostick car was overtaken at a culvert 1, 271 feet west from Jennings' filling station. The road.going west is down grade to thisculvert and up grade beyond it, but the grades are not heavy and the road is straight. After passing the Bostick car, the Poole car traveled west 1G3 feet when it left the road and ran along against and on the top of a south-side cut somewhere between 4 and 5 feet high. It ran along this bank for about 200 feet. It then crossed the road to the north side, turned over, and finally came to rest facing east. Kelley was thrown through the top and died in a short time from injuries then suffered.

For the plaintiff it is said that the accident was due to reckless driving and to excessive speed. The defendant contends that the speed was not excessive and that the accident was due not to speed at all, but to some mechanical defect in the car.

We have a verdict, confirmed by the judge who saw the witnesses and heard the evidence. It must be sustained if there is substantial evidence to support it All pre--sumptions are in its favor.

Mrs. Richcreek saw this car when it was about two blocks east of Jennings' filling station. She said that it was "traveling west on the highway at a terrific speed"; that it sounded "like an airplane"; that it made "a terrific noise" and in her judgment was traveling somewhere between 60 and 70 miles an hour.

Miss Minnie Stone said that she and her friend, Miss Lush, were driving between 30 and 35 miles an hour when the Poole car passed, "going mighty fast, " so fast that it made a distinct impression upon her as being something out of the ordinary. She said that she and her friend had gotten to Mr. Leath's house when Poole passed the Bostick car. Leath's house is 490 feet from the filling station, while, as we have seen, the culvert was 1, 271 feet from it. That is to say, Poole drove 1, 271 feet while the Stone car was going 490 feet, and the Stone car was going, according to the estimate of this witness, somewhere between 30 and 35 miles an hour. On this basis it would appear that the Poole car was traveling from 70 to 90 miles an hour. Miss Dorothy Lush drove the car which Poole passed at the filling station. Her estimate of her speed is 35 miles an hour. She said she could not say how fast the Poole car was going, but that it was "traveling awfully fast." Her testimony as to where she was when the Poole car passed the Bostick car and where the Bostick car then was agrees with the statement of her friend Miss Stone. She is positive that the Poole car passed the Bostick car in the bottom where the culvert was.

Mrs. Bostick would not undertake to say what the speed of the Poole car was. She did say that "it was going very fast" and that "it nearly frightened me to death."

Mr. Bostick said that the Poole car passed him at a telephone pole 13 feet east of the culvert and came so near striking his car that his wife screamed. He also declined to commit himself definitely as to speed. He said that Poole was running fast, certainly as much as 50 miles an hour, and that "the car was evidently out from under control when he got up to me." It gave no signal of a purpose to pass.

A. H. Klocke sold this car to Poole and saw it almost every day before the wreck. It was in "A No. 1 condition" and would run 90 miles an hour. After the wreck it was brought back to his shop He saw nothing to indicate that the accelerator had ever been stuck or that the spring which operated it was not in perfect condition.

Harry Poole, a brother of the defendant, sat on the back seat He could not tell how fast he was going, but said that in attempting to pass the Bostick car their car got out of control. He dropped to the floor, caught hold of the foot rest, said to his brother, "You let the car get away, " and held on until he was knocked senseless.

The defendant testified in his own behalf. He said that he was traveling about the rate of 40 miles an hour, and that when within 20 or 30 feet of Bostick he stepped on the accelerator, intending to pass him when "this car shot away from me like a bullet, " and on this statement is built up the theory of the defendant, which is that for some unexplained reason the accelerator became jammed and control of the car was lost. This excerpt is from the defendant's testimony:

"A. We were going on up there. I saw two cars, well, I reckon, about 600 or 800 feet ahead of me, maybe a little further than that One was ahead about a block of that. I followed those cars. When we got near the end of the concrete, or directly after we got off the concrete, I passed one car. I was not driving more than forty miles an hour. I passed Mr. Bostick in the bottom. I stepped on the gas and this car shot away from me like a bullet It began to shimmy. The car got away from me and there was nothing I could do to control it

"Q. You lost control of the car?

"A. Yes, sir.

"Q. What was the cause of your losing control of the car?

"A. Well, I feel something was bound to have happened to the accelerator to cause the car to shoot away like it did. I had been driving the car about ten months and had never had anything to happen to it, in no way, shape or fashion.

"Q. The road was wide enough?

"A. Yes, sir.

"Q. How fast were you running when you reached Mr. Bostick's car?

"A. I had been running around forty miles an hour before I got up to him. These cars were ahead of me. I could not have run very fast before I got to them.

"Q. What did you do?

"A. I put the brake on. I thought I had my foot on the brake. The car had got so fast I could not do anything and I reached to cut the switch off and when I did it run into the bank and when I was thrown forward my weight bent the key and I could not do anything with it"

It will be noted that this witness tells us that he lost control of the car, but gives no definite explanation of how this came about. He says that he feels that something must have happened to the accelerator and that this happened before he reached the Bostick car. No definite statement of a fact is made, and the reason assigned is but in the nature of a suggestion or theory. He does tell us that the passing was "in the bottom." Elsewhere he explains his desire to pass in a hurry. He said that there was a hill ahead of him and that he wanted to complete the passing before the crest of the hill was reached. That crest was 500 feet from the point of passing. He said that Kelley made no protest as to speed. In this he is contradicted by other witnesses, among them Mrs. Neblett, who is a daughter of Mr. Kelley. She said that Poole stated to her mother, "The last thing I remember Sam saying was, 'For God's sake, George, don't let this car get away from you, ' and I asked him, 'Mr. Poole, you must have been driving awfully fast for Papa to have said that, ' and he said, 'Well, I don't know how fast I was driving.' "

In the course of Miss Stone's cross-examination, this appears:

"Q. Where was the first point on the road you saw the car you thought was Mr. Bostick's car?

"A. At Mr. Leath's house.

"Q. How far behind Mr. Bostick were you? "A. I don't know how far.

"Q. You know about the distance of an ordinary block in a town?

"A. I suppose it was about a block.

"Q. You were about a block behind Mr. Bostick?

"A. I suppose so; I could not say for sure."

This also is an excerpt from Miss Lush's cross-examination:

"Q. Miss Lush, did you see Mr. Bostick's car in front of you when you were on your way from Crewe to Burkeville that day?

"A. Yes, I saw it.

"Q. About how far in front of you was that car?

"A. I could not tell how far; I could see it.

"Q. About a quarter of a mile?

"A. I am not sure of miles; I could not tell you.

"Q. You know about town blocks?

"A. It might have been that.

"Q. Might have been about a town block in front of you?

"A. Yes, sir."

From this it is argued that if the Bostick car was traveling at about 35 miles an hour and was only about 400 feet ahead of the Lush car, then the estimates of speed and distances theretofore given by these young ladies must be erroneous.

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