Russell v. Hammond

• Decision Date: 26 January 1959
• Docket Number: No. 4859,4859
• Citation: 200 Va. 600,106 S.E.2d 626
• Parties: ANN RUSSELL, ADMINISTRATRIX OF THE ESTATE OF JOHN ANTHONY RUSSELL, DECEASED v. JAMES EDWARD HAMMOND. Record
• Court: Virginia Supreme Court

Page 626

106 S.E.2d 626

200 Va. 600

ANN RUSSELL, ADMINISTRATRIX OF THE ESTATE OF JOHN ANTHONY RUSSELL, DECEASED v. JAMES EDWARD HAMMOND.

Record No. 4859.

Supreme Court of Appeals of Virginia

January 26, 1959.

David B. Kinney (Edward R. Johnson, on brief), for the plaintiff in error.

James H. Simmonds (Howard M. Murphy; George C. Towner, Jr., on brief), for the defendant in error.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

This suit was instituted by Ann Russell, Administratrix of the estate of John Anthony Russell, deceased, hereinafter referred to as the plaintiff, to recover damages for the wrongful death of her son, John Anthony Russell, who was walking with his back to traffic on the south side of Columbia Pike in Arlington County, Virginia, when he was struck by an automobile driven by James Edward Hammond hereinafter referred to as the defendant. The jury returned a verdict for the defendant and the trial court entered judgment thereon. To this judgment we granted a writ of error.

The plaintiff assigns the following errors: (1) The refusal of the trial court to allow the plaintiff to introduce in evidence the certificate of the chief medical examiner relative to the alcoholic content in the defendant's blood pursuant to § 18-75.2, 1956 Cum. Supp., Code of 1950; (2) the refusal of the court to grant plaintiff's instruction No. 8; and (3) the granting of defendant's instructions D and E.

There is no conflict in the material evidence.

On November 22, 1956, at about 9:45 p.m., John Anthony Russell, 13 years of age, was walking with his back to traffic on the south side of Columbia Pike in Arlington County, Virginia. At the point of the impact Columbia Pike is slightly downgrade, about 40 feet wide from curb to curb, and is divided into two east-bound lanes and two west-bound lanes with a three-foot concrete gutter on each side between traffic lanes and the curbs. There is a sidewalk running along the north side of Columbia Pike available for pedestrians. Also, though not paved, there is 'plenty of room to walk off the road on the south side of Columbia Pike.' The road surface was black top and the weather was dry and clear. The general area was lighted by three street lights, however the accident occurred at the outer edge of the lighted area. The Russell boy was wearing light gray trousers, a black leather jacket, and no hat.

The defendant was traveling east in the right-hand lane of Columbia Pike and had slowed down for a red traffic light, which turned green as he approached it, and he continued through the intersection. Intending to turn from the right lane into the left lane, he looked momentarily into the rear view mirror and noticed an automobile attempting to pass him on his left. His automobile continued to move in the right traffic lane, and as he cast his eyes back down to the road his car struck young Russell, throwing him approximately 37 feet. The defendant's automobile left no skid marks. When he realized he had hit something he pulled his automobile off the pike into a driveway 153 feet from the point of impact and ran back to the scene of the accident where he found Russell lying in the gutter.

The hood on the defendant's car was dented on the right front, and the front bumper was 'shiny' about 18 inches from the right end.

The speed limit was 25 miles per hour. The uncontradicted evidence was that the defendant's automobile was traveling approximately 23 1/2 miles per hour at the time of the impact.

Two policemen arrived on the scene within minutes. They testified that the defendant's eyes were bloodshot; that they detected the odor of alcohol on his breath; that he gave no outward appearance of being under the influence of alcohol; that he walked perfectly normally; that his speech was not thick; that he answered questions intelligently, and that he had been crying, which could have accounted for his bloodshot eyes. A blood alcohol test was made and certificate returned by the chief medical examiner showing 0.10 percent by weight of alcohol in the defendant's blood.

The plaintiff contends, in her first assignment of error, that under § 18-75.2, 1956 Cum. Supp., Code of 1950, the certificate issued by the chief medical examiner relative to the blood alcohol test is admissible in evidence in civil cases.

SECTION 18-75.2, 1956 CUM. SUPP., CODE OF 1950¹, is one of three statutes of c. 557, p. 912, of the Acts of Assembly of 1956, as amended by c. 45, p. 48, of the 1956 Ex. Sess. The three statutes, §§ 18-75.1, 18-75.2, and 18-75.3, must be read together since they are related and the last two refer to the blood alcohol test made under § 18-75.1.

Section 18-75.1 is specifically made applicable to 'criminal prosecutions under § 18-75 (driving automobile, etc., while intoxicated) or similar ordinance of a county, city, or town,' and mentions the accused throughout. The same language with respect to criminal prosecutions and the accused occurs in § 18-75.3, and the very sentence of § 18-75.2 relied upon by the plaintiff refers to analysis of the blood of the accused. The intended meaning of the words 'in any court or proceeding' found in § 18-75.2 is obvious when such words are read in the context of the sentence in which they occur: thus '* * * the copy of such certificate as provided for in § 18-75.1 shall, when duly attested by the chief medical examiner * * *, be admissible in any court or proceeding as evidence of the facts therein stated and the results of the analysis of the blood of the accused.' (Italics supplied.)

The words 'in any court or proceeding,' when read in conjunction with the companion §§ 18-75.1 and 18-75.3, clearly refer to 'any court or proceeding' dealing with 'any criminal prosecution under § 18-75 or similar ordinance of any county, city or town * * *' such as is referred to in § 18-75.1.

Section 18-75.1 also provides that the certificate of the medical examiner 'shall be returned to either the police officer making the arrest, the department from which it came, or to the clerk of the court in which the matter will be heard.' (Italics supplied.) The 'clerk of the court' obviously refers to the court where the criminal prosecution, under § 18-75 or similar ordinance, will be heard.

Section 18-75.3 provides for certain presumptions arising out of the analysis made, pursuant to § 18-75.1, of the alcoholic content in the blood of an accused in a criminal prosecution under § 18-75.

In a civil suit there is no accused. Hammond was a defendant, not an accused, in this trial.

The legislature, by its own enactment, placed the sections in the Code under 'Crime and Offenses Generally.' Title 18, chap. 4, art. 6. If the legislature had intended the sections to deal with evidence in civil cases it would undoubtedly have placed the statutes in the Code under 'Evidence' (Title 8, chap. 16, Code of 1950) or some other appropriate section.

The certificate of the medical examiner executed under § 18-75.1 is not admissible under § 18-75.2 in a civil case. The ruling of the trial judge was correct.

The plaintiff next complains of the court's refusal to grant instruction No. 8 and the granting of defendant's instructions D and E.

Instruction No. 8, offered by the plaintiff, reads as follows:

'The jury is instructed that if they believe the presence of John A. Russell on the right-hand side of Columbia Pike was only a remote cause of his death, and that the negligence of James E. Hammond was the sole proximate cause of the death of John A. Russell, then the jury should find for the Plaintiff.'

The decedent was walking within the traveled portion of Columbia Pike with his back to traffic when a sidewalk was available, in violation of Code § 46-247, ² as amended by Acts of 1950, c. 433, p. 850. He continued to walk in a place of danger in violation of the statute up to the moment of the impact. He could have removed himself from danger...