Saunders v. Hall

• Decision Date: 25 November 1940
• Docket Number: Record No. 2256.
• Citation: 176 Va. 526
• Parties: W. G. SAUNDERS AND WILLIAM SMITH v. MARY H. HALL, ADM'X, ETC.
• Court: Virginia Supreme Court

Page 526

176 Va. 526

W. G. SAUNDERS AND WILLIAM SMITH v. MARY H. HALL, ADM'X, ETC.

Record No. 2256.

Supreme Court of Virginia, Richmond.

November 25, 1940.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Sprately, JJ.

1. AUTOMOBILES — Verdict — Effect of Verdict for Plaintiff upon Cross-Claims of Defendants Case at Bar. — In the instant case, an action by an administratrix against the owner and the driver of a truck for the wrongful death of her husband, defendants filed cross-claims for injuries and for damages to the truck. The case, including the respective cross-claims of defendants, was submitted to the jury and they found a verdict in favor of plaintiff upon which the court entered judgment in her favor. Later the court entered judgment nunc pro tunc against defendants upon their cross-claims. Objection was made on appeal that the cross-claims had never been passed upon and decided by the jury and that the nunc pro tunc judgment was not proper. The cross-claimants made no such objection to the verdict when rendered and they did not claim at that time that the jury failed specifically to mention and pass upon their cross-claims.

Held: That there was no merit in the objection of defendants since the effect of the verdict in favor of the administratrix was to establish the fact that her husband was free from negligence, and this being true the finding of the jury was bound to have been against cross-claimants.

2. APPEAL AND ERROR — How Evidence Considered — In Light Favorable to Party Receiving Verdict. — Where a jury finds for a plaintiff, evidence tending to support the verdict must, on appeal, be considered and analyzed in a light favorable to the plaintiff and if it is sufficient, then all other adverse evidence may be discarded.

3. AUTOMOBILES — Negligence — Evidence Warranting Submission of Question of Negligence to Jury — Case at Bar. — In the instant case, an action by an administratrix for the wrongful death of her husband in a collision between a truck which he was driving and a truck of defendants', the evidence showed that the collision occurred on the side of the highway where decedent's truck properly belonged. The driver of defendants' truck testified that when the brakes were applied the truck started to skid to its left and continued to skid until the collision occurred. An expert brake mechanic testified that the adjustment of the brakes described by the driver of defendants' truck was not proper.

Held: That from the evidence introduced by plaintiff touching the brake equipment, its adjustment, and the application of the brakes at the time, the court was warranted in submitting to the jury the question of whether defendants were negligent in respect to these things.

4. AUTOMOBILES — Questions of Law and Fact — Proximate Cause — Sudden Emergency — Case at Bar. — In the instant case, an action by an administratrix for the wrongful death of her husband in a collision between a truck which he was driving and a truck owned by one defendant and driven by the other defendant, the evidence showed that defendants' truck had been racing another automobile just prior to the collision and that the collision occurred on the side of the highway where decedent's truck properly belonged. The driver of defendants' truck testified that when the brakes were applied the truck started to skid to its left and continued to skid until the collision occurred. An expert brake mechanic testified that the adjustment of the brakes described by the driver of defendants' truck was not proper. Defendants contended that the sole proximate cause of the collision was the negligence of the driver of the car which was attempting to pass just prior to the accident, and that the passing of that car brought about an emergency that would be effective to relieve defendant driver from exercising the care and prudence that one would be expected to exercise under normal conditions. The court instructed the jury that if the negligent conduct of the driver of the passing car was solely responsible for the collision there could be no recovery against defendants and granted, at the request of defendants, an instruction that if a person is confronted with a sudden emergency he is not required to make a wise choice; and if the driver of the car passing and plaintiff's decedent in driving the truck presented a sudden emergency created without fault of defendant driver, either to hold his course or turn to his right or to his left in order to avoid a collision, and that he cut to the left in an effort to avoid the accident and in so doing his action was such as a person of ordinary prudence might have done under like circumstances, then he was not guilty of negligence even though he failed to avoid the collision, even though the jury might believe that he could have avoided the accident had he stayed on his side of the road.

Held: That the issues were for the determination of the jury and had been properly submitted by the instruction set out.

5. NEGLIGENCE — Questions of Law and Fact — Fault in Bringing about Emergency. — Generally whether one is without fault in bringing about an emergency is for the jury, and it is seldom for the determination of the court.

6. AUTOMOBILES — Questions of Law and Fact — Fault of Defendant in Creating Emergency — Case at Bar. — In the instant case, an action by an administratrix for the wrongful death of her husband in a collision between a truck which he was driving and a truck owned by one of the defendants and driven by the other defendant, the evidence showed that defendants' truck had been racing another automobile just prior to the collision and that the collision occurred on the side of the highway where decedent's truck properly belonged. The driver of defendants' truck testified that when the brakes were applied the truck started to skid to its left and continued to skid until the collision occurred. An expert brake mechanic testified that the adjustment of the brakes described by the driver of defendants' truck was not proper. Defendants contended that the sole proximate cause of the collision was the negligence of the driver of the car which was attempting to pass just prior to the accident, and that the passing of that car brought about an emergency that was effective to relieve defendant driver from exercising the care and prudence that one would be expected to exercise under normal conditions.

Held: That whether the driver of defendants' truck was with or without fault in bringing about the emergency under the evidence was for the jury.

7. WITNESSES — Impeachment — Prior Contradictory Statement — In What Proceedings Inadmissible. — Under the first part of section 6216 of the Code of 1936, a prior inconsistent statement of a witness is admissible to impeach him if the terms of the statute are met. However, under the last portion of the statute, a prior written statement of a witness may not be used to contradict the witness where the action is one to recover for a personal injury or to recover for death by wrongful act or neglect unless it be in the form of a deposition taken after due notice.

8. AUTOMOBILES — Witnesses — Impeachment — Prior Contradictory Statement — In Wrongful Death Action — Case at Bar. — In the instant case, an action by an administratrix for the death by wrongful act of her husband in an automobile collision, error was assigned to the ruling of the court excluding from the evidence a written statement by a witness for plaintiff in which he estimated that the truck in which plaintiff's decedent was riding was being driven at from thirty-five to forty miles per hour and that defendants' truck was being driven at from thirty to thirty-five miles per hour. On the stand the witness estimated the speed of decedent's truck at from twenty-five to thirty miles per hour, but he stated that he could not estimate the speed of defendants' truck.

Held: That the statement was inadmissible because the action was one for wrongful death and the statement was not a deposition taken after notice.

9. WITNESSES — Impeachment — Prior Contradictory Statement — Necessity for Laying Proper Foundation. — Section 6216 of the Code of 1936, relating to the contradiction of a witness by a prior inconsistent statement, was intended to permit the statement only after a proper foundation is laid.

10. AUTOMOBILES — Witnesses — Impeachment — Failure to Comply with State Requiring Laying of Proper Foundation — Case at Bar. — In the instant case, an action by an administratrix for the death by wrongful act of her husband in an automobile collision, the owner of the other vehicle involved in the collision filed a cross-claim for the property damage to his truck. Error was assigned to the ruling of the court excluding from the evidence a written statement by a witness for plaintiff in which he estimated that the truck in which plaintiff's decedent was riding was being driven at from thirty-five to forty miles per hour and that the other truck was being driven at from thirty to thirty-five miles per hour. On the stand the witness estimated the speed of decedent's truck at from twenty-five to thirty miles per hour, but he stated that he could not estimate the speed of the other truck. None of the preliminary requirements of section 6216 of the Code of 1936, requiring the laying of a proper foundation precedent to the introduction of the statement, were complied with.

Held: That the statement was properly excluded as to the cross-claimant.

11. APPEAL AND ERROR — Rule XXII of the Supreme Court of Appeals — Failure to Preserve Proper Exception and Grounds for Exception — Case at Bar. — In the instant case, an action by an administratrix for the death by wrongful act of her husband in an automobile collision, error was assigned to the ruling of the court in excluding from the evidence a written statement by a witness for plaintiff in which he estimated that the truck in...