Sheckler v. Anderson
| Decision Date | 01 May 1944 |
| Citation | 29 S.E.2d 867 |
| Parties | SHECKLER. v. ANDERSON. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Dickenson County; Alfred A. Skeen, Judge.
Action by Johnnie Anderson, by, etc, against W. H. Sheckler and others, to recover for injuries sustained by plaintiff when struck by named defendant's truck. To review a judgment in favor of plaintiff against named defendant, the named defendant alone brings error.
Affirmed.
Before CAMPBELL, C. J, and HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
S. H. & Geo. C. Sutherland, of Clint-wood, for plaintiff in error.
E. J. Sutherland, of Clintwood, for defendant in error.
The accident which is the subject of this suit happened in Dickenson County between 5 and 6 o'clock in the afternoon of June 21, 1942. It was on a state highway which passes near a settlement called Sand Lick. There is a combination store and restaurant at the place which is operated by Cowan Edwards. He resides with his family in the same building which is between 40 and 50 feet from the highway. A filling station is located between the building and the highway and what is known as the Jerry Stinson House is opposite the store across the highway about 40 feet. There are two secondary roads nearby which intersect the highway, one from the East and one from the West. Two churches are located in the general neighborhood, one being about one fourth of a mile up the eastern secondary road. Several homes are located in the immediate vicinity. The accident was on Sunday when the restaurant and filling station were both open for business.
The plaintiff in the trial court was Johnnie Anderson, an infant, four years old, who sued by his next friend, who was his father. The defendants were W. H. Sheckler, W. H. Sheckler, Jr., and Flora Sheckler. The latter was dismissed from the suit as a party defendant, and there was a verdict of a jury, sustained by the court, against the remaining defendants for the sum of $600.00. The judgment against W. H. Sheckler, Jr., was set aside when it appeared that he was under the age of 21 years and that no guardian ad litem had been appointed to represent him.
A writ of error was allowed the defendant, hence the case is before us. The evidence presents some conflict upon important points. It must be stated in the most favorable light to the plaintiff, who enjoys the advantage of the verdict of the jury and the judgment of the court.
The hard surface of the highway is 16 feet wide and there are wide shoulders on each side. It is practically level and straight for 1500 feet approaching the point of the accident and departing therefrom. The grandfather of the infant plaintiff had driven to the Edward's establish ment with his grandson in his automobile. He parked his car in front of the store from 8 to 10 feet from the hard surface of the highway and went into the store, leaving the child in the car.
At this time a truck heavily loaded with four or five tons of coal, driven by W. H. Sheckler, Jr., who was hauling coal for his father, was approaching the store from the South. In the cab of the truck were the driver, Stella Kilgore, a young girl 17 years old, and a young man named Arnold Farmer. Young Sheckler was bound for a place called Haysi which was some distance away. He had made three trips that day and this was the fourth. When the truck was about 250 feet from the store it met and passed another truck, at which time the driver noticed a little boy on the roadside. When he was within 75 feet from where the injury occurred he saw another little boy run across the road. The truck was running between 35 and 40 miles per hour. The four year old plaintiff got out of his grandfather's car and started to cross the highway. He was struck by the truck and knocked forward and was found by Mrs. Edwards and others who witnessed the accident, lying on the left side of the road with his feet on the hard surface and his head and body on the shoulder of the road. The driver at first said that he didn't see the child but Stella Kilgore, the girl who was in the truck cab beside him, said that he did see it and that he cut his truck to avoid hitting it. Subsequently he admitted that he saw him come toward the truck and that the child tried to stop but couldn't. About 250 feet from the point of the accident the truck passed an automobile which was parked on the right side of the road looking toward the store. Its owner, John Davis, was with it. He was asked what speed the truck was making. His answer was: "I would not say exactly but making pretty good speed, some of them spoke and said he was flying." The plaintiff's mother was talking to Mr. Davis at the time the truck passed and she said that while she did not pay special attention to the speed of the truck she heard the remark that "he was flying". Several eye witnesses said that the truck was in the middle of the road and there was testimony that the child was struck on the left side of the road. Its position when found would indicate this particularly when the testimony was to the effect that the child was thrust forward by the im-pact. Earl Sutherland, a witness for the plaintiff, said that he was near the store and saw the child start across the road. He said that if the driver had kept on his side of the road the child would not have been struck. See Section 2154(112) of the Code of Virginia 1942.
It is quite evident to us that the truck was going too fast to be under the complete control of the driver. When he reached the settlement where persons were likely to be assembled and where children were apt to be, he should have slowed down and had his automobile under such control as to be able to stop if confronted by such an emergency as that which occurred. The statute required this and it also required him to drive on the right side of the road. See Section 2154(108) of the Code of Virginia 1942.
There was ample evidence tending to show that he was not observant of either of these requirements. The jury was well within its province in finding a verdict for the plaintiff. We see no reason to disturb it, indeed, under the circumstances we cannot do so. The plaintiff was severely injured. He remained in a hospital for some two weeks and at the time of the trial his mother testified that he suffered from periods of swimming in the head.
The damages were laid in the notice of motion for judgment at $5000. The verdict was...
To continue reading
Request your trial
-
Blevins v. Commonwealth
...Mayo v. Commonwealth, 218 Va. 644, 648, 238 S.E.2d 831, 833 (1977); Miles, 205 Va. at 468, 138 S.E.2d at 27; Sheckler v. Anderson, 182 Va. 701, 705–06, 29 S.E.2d 867, 868–69 (1944); Crest, 40 Va.App. at 172, 578 S.E.2d at 91; Hall v. Commonwealth, 25 Va.App. 352, 355 n. 3, 488 S.E.2d 651, 6......
-
Powell v. Va.N Ry. Co
...held in a number of eases that violation of the place of travel statutes under the facts of those cases was negligence. Sheckler v. Anderson, 182 Va. 701, 29 S.E.2d 867, and cases there cited. But while the violation of such statutes is negligence, it does not necessarily follow that such n......
-
Hamilton v. Glemming
...facts are in conflict as to whether the child was struck to the left or right of the center of the road. In the cases of Sheckler v. Anderson, 182 Va. 701, 29 S.E.2d 867, and Harris v. Wright, 172 Va. 67, 200 S.E. 597, the injured child in each case entered the roadway to the left of the dr......
-
Bizzaro v. Payne, 5743.
...that the judgment of the court below must be and it is hereby Affirmed. 2 Va.Code § 2154(114) (f), Michie 1942. 3 Sheckler v. Anderson, 1944, 182 Va. 701, 29 S.E.2d 867; Driver v. Brooks, 1940, 176 Va. 317, 10 S.E.2d 887; Coerver v. Haab, 1945, 23 Wash.2d 481, 161 P.2d 194, 161 A.L.R. 909; ......