Simmons v. Craig

• Decision Date: 06 September 1957
• Docket Number: No. 4654,4654
• Citation: Simmons v. Craig, 199 Va. 338, 99 S.E.2d 641 (1957)
• Parties: PATRICK SIMMONS v. LENNOX O. CRAIG. Record
• Court: Virginia Supreme Court

Page 641

99 S.E.2d 641

199 Va. 338

PATRICK SIMMONS v.LENNOX O. CRAIG.

Record No. 4654.

Supreme Court of Appeals of Virginia

September 6, 1957.

John H. Thornton, Jr.(Leonard G. Muse; Woods, Rogers, Muse & Walker, on brief), for the plaintiff in error.

Kossen Gregory(Allen W. Staples; Woodrum & Gregory, on brief), for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

Lennox O. Craig instituted this action against Patrick Simmons for personal injuries and property damage sustained by Craig when a pick-up truck that he was driving collided with an automobile being driven by Simmons in the opposite direction.Simmons answered by filing his grounds of defense denying negligence and a cross-claim for damages to his person and property by reason of the negligence of Craig.The issue was joined and the jury returned a verdict of $7,000 in favor of Craig.The court dismissed the cross-claim of Simmons against Craig, and entered judgment according to the verdict of the jury.We granted Simmons this writ of error.

The errors assigned present the following questions:

(1) Was Simmons guilty of any actionable negligence?

(2) Was Craig guilty of contributory negligence as a matter of law?

(3) Should the trial court have granted Instruction C requested by Simmons?

The collision occurred on State Route 24, in Roanoke County, on August 2, 1954, about seven-thirty p.m., outside of a business and residential district, while a heavy rainstorm was in progress.Route 24, which is a two-lane macadamized road, twenty-two feet wide, extends in an easterly and westerly direction.The collision of the two motor vehicles took place about a mile east of the Town of Vinton, Virginia, where the road, which is divided by broken white lines, is straight for a distance of twelve hundred to fifteen hundred feet, and is slightly upgrade proceeding eastwardly.

Simmons was driving a 1951 Nash automobile westwardly toward Vinton, and Craig was proceeding eastwardly in his 1950 Dodge pick-up truck following another motor vehicle for a considerable distance.Following Craig was an automobile operated by Irvin Chisom.Craig said he was driving twenty-five or thirty miles an hour until he increased his speed to pass the car in front of him.Simmons estimated his speed at approximately twenty miles per hour.All of the evidence was to the effect that vision was greatly obscured by the weather conditions prevailing at the time of the accident, and that it was sufficiently dark to require each of the vehicles to have its headlights on.

Craig testified that he had the headlights of his truck turned on; that his truck was loaded with chicken feed; that the car he was following was going too slow for him; and that he was 'interested' in getting to his home because his chicken feed was getting wet.Said he, 'I just thought I had a good chance to pass then and I tried it.'He gave this account of the collision: '* * * (As) I went out of Vinton it was raining and I followed this car on out waiting and watching for a chance to pass -- I would not risk no passing until I got to that long stretch and saw nothing to keep me from passing -- the lanes were open -- pulled to my left lane to pass and got about even of this car I was trying to pass not knowing there was anybody behind me, and I ran right up into a light and I just could not do nothing looked like but go right into it -- just time to say here he comes and there he goes and bang, we hit.'

Craig also said that when he looked ahead, as he'had been doing all the way out of Vinton, trying to find a chance to pass,'he saw 'nothing but dark road.'Asked when he first knew that a car was coming towards him, he replied: 'Just an instant or so before it hit because I seen nothing until that time.'He was uncertain of the exact position of his car, with relation to the car he was following, at the time of the collision, but thought he was 'about even with it' and not as far back as its rear end.

Irvin Chisom, who was driving the car behind Craig, and had followed him for about a mile, said he saw the Craig truck pull into the left lane and start to pass the car ahead of him, and when the truck was 'half-way up with the car he was attempting to pass, I just saw some lights flash up like that (indicating) -- that is all -- and they hit.'He estimated that the Craig and Simmons cars were about two or three lengths apart when the lights of Simmons' car 'suddenly flashed on.'

On cross-examination Chisom said with reference to the flashing of the lights 'That is the first time I saw any lights, looked like just a split second in between I saw the lights and there was a crash, that was all.'

He said that he intended to pass the front car in line as soon as Craig had passed, and that his left front wheel had entered the westbound lane about six or twelve inches; but that when he saw the lights of Simmons' car he turned back into his proper lane, applied his brakes, and stopped his car on the right-hand side of the road.He also stated that notwithstanding the weather conditions an unlighted car could be seen for a distance of fifty yards on the road at the most.

Simmons testified that before he reached a drive-in theater, located four hundred and twenty-five steps east of the point of the accident, he turned on his windshield wiper and headlights because of the heavy rain; that he proceeded down the road at a speed of twenty miles per hour; and that when he reached a point about two hundred and twelve steps from the theater, he saw an approaching car with its lights on; that just as he was 'meeting' that car, or rather, 'just before he got to it,'he saw approximately twenty feet ahead of him 'one headlight bearing out behind it, another headlight, and a crash and that was the story.'Under cross-examination, he estimated that he was only two or three car lengths from the Craig car when the latter came out from behind the car it had been following.

D. E. Fuqua, who lives near Route 24, a short distance east of the drive-in theater, said it had just begun to rain when he entered Route 24, slightly east of the theater, and he then turned on his lights as the rain became heavy.He said that just before he drove into the highway, Simmons' car came by, and 'it didn't have lights on when it passed me.'However, after Fuqua entered the highway and proceeded westward thereon, he observed rear lights on the Simmons' car some distance down the slight grade ahead of him.As he expressed it, -- 'Just about the time I seen that he applied his brakes and a big flare went up from his brake light -- stop light,' and the collision immediately followed.He further said that the rain was 'pouring down,' and that he did not remember seeing or passing any car going eastwardly.

E. C. Creasy, Jr., operator of the drive-in-theater, heretofore referred to, called by Simmons to testify to the weather conditions, stated that he didn't believe that he had 'ever seen it rain any harder -- just looked like a fog of mist just settled over the whole situation there, you could not see anything too far.'Asked how far he could see down the road during the rainstorm, he replied: 'Well, an unlighted object I would say your visibility would have been two or three hundred feet.'

The collision occurred wholly in the westbound lane, Simmons' proper lane of travel.According to Simmons, the right side of his car was within six inches of the shoulder of that lane.

It appeared that the car Craig was attempting to overtake and pass continued on its course without stopping, and the identity of its driver was unknown.

As a result of the accident, Craig suffered severe personal injuries and his car was damaged to the extent of more than $600.Simmons' car was demolished, but his injuries were less severe than those of Craig.

The 'Rules of the Road' provided by 'The Motor Vehicle Code of Virginia,'Code of Virginia, 1950, Title 46, §§ 46-220 to 46-242, are designed to protect the users of the highways.They are for the guidance and benefit of those who proceed in the same direction, proceed in the opposite direction, who may be stopping, starting, or crossing the highway, or those who may undertake to pass another vehicle, and those who may be affected by the operation of a motor vehicle.

Section 46-225 provides that:

'The driver of an overtaking motor vehicle when traveling outside of a business or residence district shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction.'

If Craig's failure to sound his horn proximately contributed to the accident, he was guilty of contributory negligence.

The jury had the right to infer that had Craig sounded his horn, it would have warned the driver of the vehicle ahead of him 'to give way to the right in favor of the oncoming vehicle,' and 'not increase the speed of his vehicle until completely passed by the overtaking vehicle,'Code, § 46-227.The signal would have warned the driver ahead not only to stay on his side of the road, but if danger appeared in advance to drive to his extreme right.Cab Association v. LaTouche, 197 Va. 367, 373, 89 S.E.2d 320.Moreover, it would have given notice to Simmons of the presence of Craig's truck behind the first eastbound vehicle.

Section 46-228 reads as follows:

'The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety and such overtaking vehicle shall give way to an oncoming vehicle.'

Section 46-228 expressly and positively denies the driver of a vehicle the privilege to drive to the left side of the center line of a highway in overtaking and passing...