Scott v. Simms

• Decision Date: 10 January 1949
• Parties: SCOTT et al. v. SIMMS.
• Court: Virginia Supreme Court

51 S.E.2d. 250

188 Va. 808

SCOTT et al.

v.SIMMS.

Supreme Court of Appeals of Virginia.

Jan. 10, 1949.

Error to Circuit Court, Culpeper County; Burnett Miller, Jr., Judge.

Action for wrongful death sustained in an automobile collision by L. F. Simms, administrator, etc., against John W. Scott, Jr., and others. The jury returned a verdict against all three defendants and the trial court entered judgment thereon against John W. Scott, Jr., and his father and Carroll Brown and set aside a verdict against William Francis Hudson and the Scotts bring error.

Reversed in part and final judgment rendered in favor of plaintiff against defendant Hudson.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, BUCHANAN, STAPLES and MILLER, JJ.

Robert Lewis Young, of Richmond, Hi-den, Bickers & Button, of Culpeper, and John B'. Browder, of Richmond, for plaintiffs in error.

Parrish, Butcher & Parrish, of Richmond, Thomas M. Miller, of Charlottesville, Edwin H. Gibson, of Richmond, and S. M. Nottingham, of Orange, for defendants in error.

BUCHANAN, Justice.

Alva Rose Simms, a girl about nine years old, was killed following a collision between a truck driven by John W. Scott, Jr., and owned by his father, and a Ford automobile driven by Carroll Brown, which occurred behind a Buick automobile alleged to have been illegally parked by its driver, William Francis Hudson.

Her administrator sued the Scotts, Brown and Hudson, alleging that the death of the child was caused by their concurring negligence. The jury returned a verdict against all three defendants. The court entered judgment theron against the Scotts and Brown, but set aside the verdict against Hudson and entered judgment in his favor.

This writ of error was granted to the Scotts and raises only the question of the correctness of the ruling of the court in setting aside the verdict against Hudson, the driver of the Buick. The judgment against the Scotts and Brown has become final and establishes that they were guilty of negligence which proximately contributed to the death of the child. The question for determination now is whether Hudson was also guilty of negligence, and if so, whether that negligence proximately contributed to the accident.

The accident occurred about five o'clock in the afternoon, at the intersection of Main and Scanlon streets, in the town of Culpeper. Main street, which is 45 feet 2 inches wide, runs north and south. Scanlon street, which is 22 feet 10 inches wide runs east and west across Main street at right angles. Scott drove his truck south on Main street through the intersection and collided with the Ford, which was then being driven by Brown on Scanlon street across the intersection from east to west. The truck struck the Ford about its right rear wheel. The force of the blow knocked the rear end of the Ford around clockwise, causing it either to strike the child or to crush her between the rear bumper of the Ford and the rear bumper of the Buick.

Some fifteen minutes before the accident, this Buick had been parked by Hudson at the curb on the west side of Main street, facing south, at the southwest corner of the intersection, so that its rear end extended four feet beyond the end of the curb of Main street and into the intersection. The end of this curb is at the beginning of a low retaining wall, which extends from that point west along the south edge of Scanlon street, is a few inches high at the end of the Main street curb, and gradually increases to about four feet high as it extends back west along the south side of Scanlon. This wall serves as a retaining wall for the yard of the Hitt apartment house, which is located at the southwest corner of this intersection. The sidewalk and curb along the west side of Main street stop at the intersection about even with the Main street end of this retaining wall.

When Hudson parked his Buick car in front of the Hitt apartments, there were two other cars parked against the curb in front of his car and he pulled up as close as he could to the car immediately in front of him. Just prior to the accident the little Simms girl, Rose, was playing with her friend, Betty Preston, in front of the Hitt apartments. Betty had been at Rose's home earlier that afternoon and they had come back to the Hitt apartments where Rose had left her shoes, and Rose had started back home when the accident happened.

Hudson contends that the record does not show where Rose lived, and that, therefore, it could not be said where she was going when she was struck. However, it is alleged in the notice of motion that she lived on Scanlon street, east of Main, and when Betty was asked where Rose lived, the court stopped her and stated there was no dispute as to where she lived, and asked of counsel if that was not agreed. One of counsel assented, none objected, and apparently it was accepted as a fact that she lived on Scanlon, east of Main street. The effect of Betty's testimony is that Rose left her and went behind the Buick car intending to go across Main street, and was there waiting for the cars to go by when she was struck. Betty was asked,

"Q. Why did she go behind the car, do you know? A. No, sir.

"Q. Could you get across the street without going behind the car? A. Not across Main Street.

"Q. Could not get across Main Street without going behind this car? A. I mean she could not see the cars."

Robert Kemp, riding in the cab of the Scott truck with his head out the window on the right, testified he saw this little girl standing behind the Buick car, looking and waiting for traffic to go by. Cars were then parked all along on Main street on both sides, and traffic on the street was heavy; there was a continual stream of cars going south at the time.

A witness on the opposite side of Main street heard the crash. As he looked, the Ford was headed north, appeared to be moving backwards, then it bounced or moved forward and stopped. When it stopped its rear bumper was two feet two inches from the rear bumper of the Buick. There was a mark on the Buick bumper and "it looked as though the little girl had been between whatever smashed her, " and when it was over Rose was lying in the street just behind the Buick about opposite its right rear wheel.

Mrs. McCoy was walking on Scanlon east toward Main. She heard the horn on the truck blowing as it came down Main before she could see anything, because cars were parked all along on the west side of Main. She said she saw the Ford swerve around and hit this child; that when it hit her it threw her around and up in the air. Her injuries were on her left side.

An ordinance of the town of Culpeper provides that "No vehicle shall be stopped in such manner as to impede or interfere with, or render dangerous the use of streets by others;" nor "in such manner as to block or obstruct the orderly and lawful passage of other traffic, nor upon any crossing, * * *."

If Hudson violated this ordinance he was guilty of negligence. Standard Oil Co. v. Roberts, 130 Va. 532, 107 S.E. 838; Powell v. Virginian Ry. Co., 187 Va. 384, 46 S.E.2d 429. It is clear enough that the parking violated the ordinance in more than one particular. Parking an automobile at a street corner so that four feet of it sticks out into one of the intersecting streets certainly may be said to interfere with, or render dangerous, the use of the intersecting street by others, as well as obstruct the orderly and lawful passage of other traffic, besides causing it to be upon the crossing. It is argued for Hudson that the evidence does not show that four feet north of and beyond the junction of the Main street curb and the retaining wall along the south side of Scanlon reaches into the intersection or the traveled part of Scanlon street. There was positive evidence to the contrary; that Scanlon street on the north side begins at the curb and extends south "to the extent of the traveled portion which comes up to the corner of the curb where the curb terminates on Main Street, on the southwest corner of the curb." Also a photograph in evidence so indicates.

The real and troublesome question in the case is whether this negligence of Hudson in parking the Buick was a proximate cause of the accident; that is, whether there was causal connection between his negligence and the accident, or whether the negligence of the driver of the truck and of the driver of the Ford was an intervening and superseding cause, which became the sole proximate cause of the death of the little girl. When the jury first returned their verdict they undertook, contrary to the court's instruction, to apportionthe blame 50% to Brown, 40% to Scott and 10% to Hudson. They were sent back to reconsider and return their verdict to include Hudson jointly with the other two defendants.

The question of proximate cause, or whether there is causal connection between negligence and accident, is a question of fact. Its existence or non-existence becomes a question of law only when the evidence is such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from it. Stine v. Union Electric Co. of Illinois, 305 I1l.App. 37, 26 N.E.2d 433.

"Whether there is causal connection between a defendant's negligence and a plaintiff's injuries is usually a question for the jury. It is only when men of reasonable minds may not fairly differ on the proper inferences to be drawn from the facts proved that it becomes a question of law for the court." Edgerton v. Norfolk Southern Bus Corp., 187 Va. 642, 653, 47 S.E.2d 409, 415, and cases cited.

When questions of fact are to be ascertained from evidence, there are cases in which the state of the evidence is such that the absence of proximate cause is so apparent that the court is required so to hold as matter of law, as in Wyatt v. Chesapeake & Potomac Telephone Co., 158 Va. 470, 163 S.E. 370, 82 A.L.R. 386, and there are cases where the presence of proximate cause is so demonstrated by the evidence that it...