Shoemaker v. Andrews

• Decision Date: 13 March 1930
• Citation: 154 Va. 170
• Court: Virginia Supreme Court
• Parties: FRANK SHOEMAKER v. J. P. ANDREWS.

Page 170

154 Va. 170

FRANK SHOEMAKER v. J. P. ANDREWS.

Supreme Court of Virginia, Richmond.

March 13, 1930.

Absent, Hudgins, Gregory and Browning, JJ.

1. HIGHWAYS — Automobiles — Negligence — Automobile Striking Plaintiff who was Riding upon a Mule — Absence of Lights not Contributing to Accident — Case at Bar. — The instant case was an action by plaintiff for personal injuries and the death of his mule, when he was struck by defendant's automobile coming from the opposite direction to which plaintiff was traveling. Plaintiff claimed that defendant was negligent in that he had not complied with section 50 of the motor vehicle act (1926 Supp. to Code of 1924, section 2145(50)). It was not shown that the injury occurred more than half an hour after sunset, and it was clearly shown that there was sufficient light at the time to enable the witnesses to see all that happened; so there was no proof of this allegation of negligence. Moreover, it was manifest from the testimony that the failure to have lights did not contribute in any way to plaintiff's injury.

2. HIGHWAYS — Automobiles — Negligence — Failure to Comply with Statutory Requirements — Contributing Cause of Injury. — There must be some connection between the injury and the failure to observe statutory requirements as a contributing cause of the injury suffered by the plaintiff.

3. HIGHWAYS — Automobiles — Negligence — Automobile Striking Plaintiff who was Riding upon a Mule — Excessive Speed — Case at Bar. — The instant case was an action by plaintiff for personal injuries and the death of his mule, when he was struck by defendant's automobile coming from the opposite direction to which plaintiff was traveling. Plaintiff claimed that defendant was driving his automobile at an unlawful or excessive rate of speed. A witness for plaintiff testified that defendant was driving about from thirty to forty miles an hour. Another witness for plaintiff testified that defendant was driving "pretty fast — not so awful fast — about twenty-five or thirty miles" an hour. Defendant testified that he had not run as much as thirty-five miles an hour, and that when he realized plaintiff's danger he slowed down to about five miles an hour.

Held: That this testimony did not establish the allegation of excessive speed on the part of defendant.

4. NEW TRIALS — Verdict for Plaintiff Set Aside by Trial Court as without Evidence to Support it or Against the Evidence — Action by one Riding a Mule who was Struck by Defendant's Automobile which was Coming from the Opposite Direction — Physical Facts Supporting Defendant's Account of the Accident — Case at Bar. — In the instant case plaintiff while riding upon a mule was struck by defendant's automobile which was approaching from the opposite direction. The mule was struck on its right side, thus corroborating defendant's testimony that on his approach the mule became frightened and headed directly across the road. The injuries to defendant's car were on the left side. Thus, the physical facts clearly indicated that the car at the time of the accident was being properly driven on the right side of the road. The evidence of plaintiff's son contradicted defendant, but if the son's account of the occurrence had been true, the mule instead of being struck on the right side, would certainly have been struck on his left side. Moreover, statements of the son made to others at the time of the accident were at variance with his testimony at the trial and confirmed defendant's account of the accident. There was a verdict for plaintiff which the trial court set aside and rendered judgment for defendant.

Held: That the trial court's action in setting aside the verdict as unsupported by the evidence must be affirmed.

5. APPEAL AND ERROR — Weight of Verdict — Verdict Disapproved by Trial Judge — Judge's Right to Pass on Weight of Evidence. — A verdict which has been disapproved by the trial judge is not entitled to the same weight on appeal as one that has been approved by him. The very fact that he is given the power to set aside a verdict as contrary to the evidence necessarily means that he must, to some extent at least, pass upon the weight of the evidence.

6. NEW TRIALS — Verdict without Support of the Evidence or Contrary to the Evidence — Right of Trial Judge under Section 6363 of the Code of 1919. — Under section 6363 of the Code of 1919 the trial judge cannot set aside a verdict merely because if on the jury he would have found a different verdict. He must be satisfied from the evidence adduced either that there was no evidence to support the verdict, or that the verdict was plainly contrary to the evidence. This conclusion must be drawn from the whole evidence in the case, but in arriving at his conclusions he has somewhat more latitude than the Supreme Court of Appeals would have in passing upon a verdict that was sanctioned by the judgment of the trial court.

7. NEW TRIALS — Sections 6251 and 6363 of the Code of 1919 — Evidence that would be Accepted on a Demurrer to the Evidence. — While the trial court might be compelled to accept evidence given by the plaintiff on a demurrer to the evidence by the defendant, yet under sections 6251 and 6363 of the Code of 1919, such evidence need not be accepted, when to do so would strain the credulity of the court, and require the entry of a judgment contradicted by every other fact and circumstance of the case. It is extreme cases of this sort that the statute was enacted to meet.

8. NEW TRIALS — Section 6251 of the Code of 1919 — Evidence that would be Accepted on a Demurrer to the Evidence — Verdict in Plain Deviation from Right and Justice — Physical Facts Discrediting the Verdict — Case at Bar. — While the principles of law to be applied by the appellate tribunal, where a verdict has been set aside by the trial court in the exercise of the power conferred upon it by section 6251 of the Code of 1919, are analogous to those controlling demurrers to evidence, they are not entirely the same. Where it can be seen from the evidence as a whole that the verdict has recorded a finding in plain deviation from right and justice, the court may, indeed it should, set it aside. In the instant case the physical facts discredited the verdict, thereby distinguishing the case from one in which the physical facts supported the verdict.

Error to a judgment of the Circuit Court of Buckingham county, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

Claude R. Wood and Hubard & Boatwright, for the plaintiff in error.

Strode & Edmands, for the defendant in error.

PRENTIS, C.J., delivered the opinion of the court.

The cause of action of Frank Shoemaker, plaintiff, is that he was seriously injured and the mule which he was riding was killed, as he alleges, by the negligence of Andrews, the defendant. The notice, as amended, alleges that while he was proceeding in a westerly direction on the highway, keeping close to the right or north side, and Andrews was driving his automobile in an easterly direction upon the north or wrong side of the highway, at the excessive rate of speed of forty-five miles an hour, without lights, the time being about 6 p.m., January 13, 1928, the defendant recklessly, wantonly and negligently drove the car upon the mule which the plaintiff was riding, and thus caused the injuries.

There was a verdict in favor of the plaintiff for a substantial sum, which the trial court set aside as unsupported by the evidence, and thereupon entered judgment in favor of the defendant.

There are several errors assigned, but it is only necessary for us to consider the controlling issue, and that is whether or not the evidence is sufficient to support the verdict.

We think it hardly necessary to repeat the general rules governing such cases. These rules have been repeatedly and sufficiently expressed by this court.

There were only three persons present at the time of the occurrence. The plaintiff testifies that he has no recollection on the subject. Whether this is because of the seriousness of his injuries or for some other unexplained reason does not appear. The defendant testified clearly as to the occurrence and his testimony, if true, shows that he was guilty of no negligence whatever. The plaintiff's son, a boy of fifteen years, at the trial testified to facts which tended to inculpate the defendant. His statements at the trial, however, differed very materially from his statements as testified to by the plaintiff and two other reputable witnesses, which he made at the time of the occurrence, which also exculpated the defendant.

The applicable statute as to lights is section 50 of the motor vehicle act (Laws 1926, chapter 474), which reads: "Every vehicle upon a highway within this State, during the period from a half hour after sunset to a half hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway at a distance of two hundred feet ahead, shall be equipped with lighted front and rear lamps * * *."

1, 2 The precise time of the injury is not clearly shown; it was shortly after 5:30 p.m.

All of the witnesses testified clearly as to the occurrences which they saw. It is not shown that the injury occurred more than half an hour after sunset, and it is clearly shown that there was sufficient light at the time to enable the witnesses to see all that happened; so that there is no proof of this allegation of negligence. It is manifest from the testimony that the failure to have lights did not contribute in any way to the plaintiff's injury. It can hardly be doubted that there must be some connection between the injury and the failure to observe such statutory requirements as a contributing cause of the injury suffered by the plaintiff. Norfolk Southern R. Co. Banks, 141 Va. 722, 126 S.E. 662.

3 There is no testimony that def...