Roanoke Ry. & Electric Co v. Whitner
| Decision Date | 12 June 1939 |
| Court | Virginia Supreme Court |
| Parties | ROANOKE RAILWAY & ELECTRIC CO. v. WHITNER. |
Rehearing Denied Sept. 19, 1939.
Appeal from Circuit Court, Roanoke County; Thurston L. Keister, Judge.
Action by Annie B. Whitner against the Roanoke Railway & Electric Company for personal injuries received in an automobile accident. From a judgment for the plaintiff, the defendant appeals.
Reversed and rendered.
Argued before CAMPBELL, C. J., and HOLT, HUDGINS, BROWNING, EGGLESTON, and SPRATLEY, JJ.
Woods, Chitwood, Coxe, Rogers & Muse, of Roanoke, and Kime & Hoback, of Salem, for plaintiff in error.
Showalter, Parsons, Kuyk & Staples, of Roanoke, for defendant in error Marion E. Chapman.
No appearance for defendant in error Annie B. Whitner.
Under review is a judgment for a plaintiff given in compensation for personal injuries received in an automobile accident.
She, Annie B. Whitner, with a Miss Sloan, rode as a guest in a Packard coupe owned and driven by Marion E. Chapman. This coupe ran into the back end of a bus owned and operated by the Roanoke Railway & Electric Company, which was then standing on what is known' in the record as the Williamson road, leading north through the outskirts of the city of Roanoke. This road is practically straight. Its paved surface is thirty feet wide and is divided by white lines into three ten-foot lanes. That to the right, going north, is for northbound traffic. The middle lane is for passing purposes. Defendant's bus is 27 feet long, 10 feet high, and 8 feet wide. It was driven by K. E. Richardson and on it were three passengers, Robert H. Waldron, R. L. Meador and James Thompson. There were the usual inside lights, and on its rear were three large red lights and a tail light. It carried also another red light, which came on when brakes were applied but which had nothing printed thereon to indicate a purpose to stop. Estimates as to speed vary from 15 to 40 miles an hour. Mrs. Whitner puts it at from 35 to 40 miles. She also said that the Packard in which she was riding and which followed was moving at about the speed of the bus. As the bus approached John street, an intersection street, it slowed down to let off a passenger and to take on one who indicated his desire to come aboard.
Code, section 2154(133), provides that no bus shall stop on the traveled portion of any highway outside of cities except where it can not with safety leave the traveled portion of the highway. This provision is for the safety and convenience both of passengers and of the public generally.
Code, section 2154(122), declares that a purpose to stop should be made plain by a signal of the hand or arm.
Code, section 2154(119), also declares that one motor vehicle shall not follow another more closely than is reasonable and prudent.
The Packard struck the bus with such force that two of its passengers were thrown from their seats while it was by the impact moved forward about 10 feet. This accident occurred at about nine-thirty at night.
Mrs. Carl Wilson, a witness for the plaintiff, said that the car, after the accident, stood close to the sidewalk.
H. C. Hamblin, deputy sheriff for Roanoke county, said that it stood right behind the bus.
From the bill for repairs to the car it appears that a new right fender was supplied, the left was straightened and refinished, and a new radiator was put in to replace the old one which had been crushed, all of which fairly leads to the conclusion that the Packard car was driven head on into the standing bus. It could not have been moved forward 10 feet by a glancing blow from a light car. The jury must have thought that Chapman was grossly negligent for it could not otherwise have given a verdict for a guest. Boggs v. Plybon, 157 Va. 30, 160 S.E. 77.
It first found:
"We, the jury, find for the plaintiff and fix the damages at $7,000.00, divided $2,-000.00 paid by the Roanoke Railway and Electric Company and $5,000.00 by Marion E. Chapman."
Since Chapman and the bus company were sued as joint tort feasors, the court could not accept it and said:
"You can not apportion or divide the amount of your damages between the two defendants."
Thereupon the jury again retired and after a time returned into court with the following verdict:
"We, the jury, find for the plaintiff and fix the damages at $7,000.00 against both defendants."
While the verdict as first returned did not conform to Virginia law, it does tell us what the jury thought.
Both Chapman and the bus company applied for writs of error. Chapman's petition was denied, that of the bus company was granted.
This court also must have thought that Chapman's negligence was gross.
Accepting as true evidence for the plaintiff which sustains her verdict, we are of opinion that the bus company also was negligent in that it stopped upon the paved surface of the highway and gave no signal by arm or hand of its purpose.
Plaintiff did not call Miss Sloan as a witness, and in explanation thereof counsel said that she was suffering from "traumatic amnesia." Nor did she call Chapman as a witness. It is true that when he was put upon the stand to contradict a statement made by Mr. Layman the court then gave to defendant's counsel the right to examine him as an adverse witness. But that right he was unwilling to exercise. Chapman's failure to testify is thus explained by his counsel:
"When the court remembers that the plaintiff was practically his foster-mother, the court will properly appreciate their reticence and ours in questioning him more closely than was necessary."
That is to say, Mrs. Whitner did not wish to embarrass Chapman, and Chapman did not wish to embarrass Mrs. Whitner, although she was anxious to secure a joint judgment. Whatever may have been the reasons governing him in failing to testify against the plaintiff, there is no reason why he should not have shown that the fault lay with the bus company, not with him. Indeed the record discloses that he introduced no witnesses at all, except a mechanic who repaired his car. So far as Mrs. Whitner was concerned,...
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