Shelton v. Mullins

• Decision Date: 25 April 1966
• Citation: 207 Va. 17,147 S.E.2d 754
• Parties: Robert Lee SHELTON, an infant who sues by his mother and next friend, Pauline Shelton, v. Kathryn Nelson MULLINS. Charles L. SHELTON v. Kathryn Nelson MULLINS.
• Court: Virginia Supreme Court

Page 754

147 S.E.2d 754

207 Va. 17

Robert Lee SHELTON, an infant who sues by his mother and next friend, Pauline Shelton, v. Kathryn Nelson MULLINS.

Charles L. SHELTON v. Kathryn Nelson MULLINS.

Supreme Court of Appeals of Virginia.

April 25, 1966.

James C. Turk, Radford (Dalton, Poff & Turk, Radford, on brief), for plaintiffs in error.

John B. Spiers, Jr., Radford (Spiers & Spiers, Radford, on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

EGGLESTON, Chief Justice.

Robert Lee Shelton, aged three, while attempting to cross Seventh street in the city of Radford, was struck and injured by a car driven by Mrs. Kathryn Nelson Mullins. Suing by his mother and next friend, the child filed a motion for judgment against Mrs. Mullins to recover damages for his injuries. The father filed suit against Mrs. Mullins to recover medical, hospital and other expenses incurred in attempting to cure the child of such injuries. Pursuant to Code, § 8--629, as amended (Repl.Vol.1957), the cases were tried together before a jury and each resulted in a verdict and judgment for the defendant. We granted a writ of error in each case.

While there is an assignment of error challenging the sufficiency of the evidence to sustain the verdicts and judgments, this is not pressed and the pertinent question presented to us is whether the trial court erred in its rulings on various instructions granted and refused.

The accident occurred about 6:30 P.M. on September 2, 1960, during daylight, when the streets were dry. Seventh street runs north and south and is paved to a width of 18 feet. On the eastern side of the street a sloping bank leads from the yard of the Alfred Tolley residence down to the sreet. The only eyewitnesses to the accident were Mrs. Pauline Shelton, the mother of the boy, and Mrs. Mullins, the driver of the car.

Mrs. Shelton testified that under her direction and while she was standing near the western side of Seventh street, the little boy went eastwardly across the street to give a toy to another boy with whom he had just been playing. According to Mrs. Shelton, after the Shelton boy had delivered the toy to his playmate the two boys stood together for several minutes on the bank, six or seven feet from the eastern edge of the pavement and slightly north of the walk leading to the Tolley residence. While the children were thus standing, Mrs. Shelton says, she looked to her right--that is, to the south--and saw the Mullins car coming northwardly along the street. Fearing that her child might attempt to cross ahead of the approaching car, Mrs. Shelton waved to him and cried out, 'Bobby, go back!' Despite this warning, she says, the child came down the bank to the eastern edge of the pavement, started across the street, and was struck by the Mullins car.

According to the further testimony of Mrs. Shelton, the two boys, standing near the eastern side of the street, were in plain view of Mrs. Mullins for a distance of at least 350 feet as she approached he scene. Mrs. Shelton said the Mullins car 'was coming at a very fast speed,' which she estimated to be at 30 to 35 miles per hour. However, there was evidence that at other times she had stated that the speed was much less than that, and on occasions had not claimed that the car was driven at an excessive speed. The permitted speed limit in that area was 25 miles per hour.

Mrs. Shelton further testified that at the time of the accident there were no other children playing in or near the Tolley yard. The evidence shows that there are trees along both sides of the street and that those on the eastern side partly obscure the view which the driver of a northbound vehicle has of the Tolley yard.

Mrs. Mullins testified that just before the accident she was driving 'about 20 or 25 miles' per hour; that she saw Mrs. Shelton 'waving her arm and hollering,' but 'I thought she was hollering at me and I waved at her;' that she then heard Mrs. Shelton's warning, 'Bobby, go back!' She further said that 'about that time' the Shelton child came from behind the trees or a post and 'down a little enbankment' in front of the walkway leading from the street to the Tolley residence, at which instant she was 'almost on top of him;' that she applied her brakes, cut her car to the left, but was unable to avoid the impact. Her car was brought to a stop about 35 feet beyond the point where the child was struck. Mrs. Mullins denied that as she approached the scene the two boys were, as described by Mrs. Shelton, standing on the bank near the eastern side of the street and in plain view.

At the trial below the plaintiffs objected to the granting of a number of instructions offered on behalf of the defendant. Among these was Instruction 'B' which told the jury that 'even though you may believe from a preonderance of the evidence that Mrs. Mullins was negligent, yet unless you further believe from a preponderance of the evidence that any such negligence was the Sole proximate cause of the accident, you must find your verdict in favor of Mrs. Mullins.' (Emphasis added.)

Instruction 'H' told the jury that if they believed 'that it is just as probable that the injuries to Robert Lee Shelton resulted from or were caused by the acts of Some third person, or from some cause for which Mrs. Mullins is not responsible, as it is that such injuries resulted from a cause for which she is responsible, then your verict should be for the defendant.' (Emphasis added.)

Since the case was tried in the court below upon the correct principle that this three-year-old child was incapable of contributory negligence, these instructions were designed to permit the jury to exonerate the driver of the car from libility if they believed from the evidnce that the mother of the child was guilty of negligence in permitting him to cross the street unattended, or in hollering and waving so as to distract the attention of the driver from her view of the street ahead, and that the mother's negligence was a proximate cause of the accident. In adopting this theory of the defendant and granting these instructions the trial court was in error.

In the first place, the negligence, if any, of the mother was not imputable to the child. American Tobacco Co. v. Harrison, 181 Va. 800, 809, 27 S.E.2d 181, 185. In the next place, even if the mother were negligent this would not exonerate the driver from liability, provided the latter was guilty of negligence which was a proximate cause of the accident. Richmond Coca-Cola Bottling...