Portsmouth Transit Co. v. Brickhouse

• Decision Date: 04 May 1959
• Docket Number: No. 4937,4937
• Citation: 200 Va. 844,108 S.E.2d 385
• Parties: , 78 A.L.R.2d 147 PORTSMOUTH TRANSIT COMPANY v. HERBERT L. BRICKHOUSE, ADMINISTRATOR, ETC. Record
• Court: Virginia Supreme Court

Page 385

108 S.E.2d 385

200 Va. 844, 78 A.L.R.2d 147

PORTSMOUTH TRANSIT COMPANY v. HERBERT L. BRICKHOUSE, ADMINISTRATOR, ETC.

Record No. 4937.

Supreme Court of Appeals of Virginia

May 4, 1959.

Archibald G. Robertson and Lewis Thomas Booker (L. S. Parsons; Hunton, Williams, Gay, Moore & Powell; Parsons, Stant, Parsons & Mirman, on brief), for the plaintiff in error.

Luther W. White, III and William C. Worthington (Worthington, White & Harper, on brief), for the defendant in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Albert E. Brickhouse, a 13-year-old boy, was riding a bicycle on High Street, in the city of Portsmouth, when it was struck by a bus owned and operated by Portsmouth Transit Company. He died next day from his injuries and his administrator brought this action for damages and recovered a verdict and judgment against the defendant from which it appealed. Under its assignments of error it contends there was no proof that it was negligent and that the court erred in the admission of evidence and in its rulings on instructions.

The only evidence was that offered by the plaintiff, which was to the following effect as the jury could have viewed it:

High street, where the accident happened, runs east and west, is level and straight, and has three lanes for westbound traffic and three lanes for eastbound traffic, each lane being about 10 feet wide. The accident occurred about 9 a.m. on June 3, 1957, in the 2700 block of High street between Kirn street on the east and Watson street on the west. The boy was going west on his bicycle and the bus was going in the same direction. Traffic was rather heavy. Some cars were parked in the most northerly lane of High street.

Two witnesses testified to seeing the accident. One was driving his car eastwardly in the lane next to the middle of the street. He saw the boy perhaps 150 feet from him coming west and he saw the bus at the same time. It was obvious that an accident was about to happen. The boy on the bicycle was right at the front corner of the bus and was then in the air, distinctly not on the ground, but he could not say whether the boy was then on the bicycle or whether he had been hit. The bus then veered to its left, crossed in front of the witness, struck the right front bumper and fender of his car, crossed the eastbound traffic lanes, the sidewalk on the south side of the street, a vacant lot and stopped against a house. He recalled seeing the driver very rapidly turning the steering wheel and the front wheels of the bus turning. He had no impression as to the speed of the bus.

The other eye-witness was likewise driving east in the lane next to the center of the street. He saw the boy riding west and the bus also coming west and a little to the rear of the bicycle. The bus was in the lane next to the north lane in which the cars were parked. The boy was 'seemingly' between two of the cars parked about three car lengths apart. He was riding about three-fourths of a car width from the north curb and was about three-fourths of the way toward the second parked car. The bus driver had enough space to go past this second car and there was enough space between the bus and the parked car in which to ride a bicycle. The right-hand side of the bus struck the bicycle and the boy and the bicycle went forward into the street. It appeared to him that the boy came out from between these two parked cars and the bus driver swerved away to try to avoid hitting him. After the bus hit the boy in the direction of the swerve it continued in that direction, jumped the curbing on the opposite side of the street and went into a field and against a house.

A police officer reached the scene a few minutes after the accident. He marked on a map where he thought the accident happened, which was approximately five feet east of where the boy was still lying in the street. The mark was near the middle of the lane in which the bus was traveling. From this mark to the place where the bus stopped against the house was about 200 feet. The bus driver told him that he saw the boy approximately 10 to 15 feet ahead of the bus riding a bicycle west on the north side of High street; that the boy fell from the bicycle and he did not know whether he struck him with the bus or not; that he made a short left turn across High street, headed south and went up against the house to avoid striking the boy.

After the accident the bicycle had a dent in its rear fender about 18 inches from the ground which was not there when the boy started to school just before the accident.

There was evidence tending to show that as the boy was riding along the street the top of his head was 5 feet above the ground and that the parked cars were of normal height; that the average height of a relatively late model automobile is approximately 5 feet.

A map made by a civil engineer was introduced to show the line of vision that the bus driver should have had over the top of a parked automobile from 60 feet away and from shorter distances as it approached the car.

The defendant offered no evidence but rested its case on its motion to strike the plaintiff's evidence on the ground that it was insufficient to show any negligence. The court overruled that motion and we hold that it was not error to do so. Under the conditions existing at the time of the accident, the position of the boy riding his bicycle between the two parked cars, the distance of these two cars apart, his nearness to the car in front requiring a veering to the left to...