South Hill Motor Co. Inc v. Gordon

• Decision Date: 09 January 1939
• Citation: 200 S.E. 637
• Court: Virginia Supreme Court
• Parties: SOUTH HILL MOTOR CO., Inc., et al. v. GORDON.

200 S.E. 637

SOUTH HILL MOTOR CO., Inc., et al.

v.GORDON.

Supreme Court of Appeals of Virginia.

Jan. 9, 1939.

Error to Circuit Court, Mecklenburg County; N. S. Turnbull, Judge.

Trespass on the case by Chalmers M. Gordon, Jr., against the South Hill Motor Company, Inc., and another to recover for injuries sustained when plaintiff was struck by an automobile while walking on a public highway. Judgment for plaintiff, and defendants bring error.

Reversed, and judgment entered for defendants.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Parrish, Butcher & Parrish and Edward P. Simpkins, Jr., all of Richmond, for plaintiffs in error.

Irby Turnbull, of Boydton, for defendant in error.

SPRATLEY, Justice.

This case presents for our review a judgment in favor of a pedestrian, who was struck and injured by an automobile on a public highway.

Chalmers M. Gordon, Jr., was the plaintiff in the court below, and J. V. Jones, the operator of the automobile, and the South Hill Motor Company, Inc., his employer, were the defendants. The parties will be hereinafter referred to according to the positions they occupied in the trial court.

The action was instituted by the filing of a declaration of trespass on the case. The defendants filed their plea of the general issue, grounds of defense, and a statement of their intention to rely upon the contributory negligence of the plaintiff.

Both at the conclusion of the plaintiff's evidence, and at the conclusion of all of the evidence, the defendants moved the court to strike out all the evidence on the ground that the plaintiff was guilty of contributory negligence. The trial court overruled themotion, and after a verdict was returned in favor of the plaintiff, refused to set aside the verdict.

The accident occurred sometime between six and seven o'clock p. m., on January 6, 1937, on U. S. highway No. 1, at a point within, or near, the southerly boundary of the town of South Hill, in Mecklenburg county. This highway is a main heavily traveled thoroughfare from the north to the south, and passes through the town of South Hill. On leaving South Hill going southwardly, there is a moderate left-hand curve in the highway, beginning at a point about opposite a service station owned and operated by a man named Willis. This service station is on the western side, or right-hand side of the highway proceeding southwardly. On the east side, almost directly opposite, is a service station and garage owned by a man named Pearson, and operated under the management of C. A. Pulley. Proceeding further from these two service stations around this left-hand curve, one next reaches property on the right-hand side used by the State Highway Department. The curve terminates opposite this latter property, and continues southwardly in a straight line on a slight down grade, the exact degree of which is not shown in the record. About three hundred yards or more distant southerly from the end of the curve, on the straight road, and next to the Highway Department's property, is a service station of Bud Mitchell, also on the western side of the road. There is a twelve-foot "good surface" driveway extending from this latter station to the highway covering between forty-five and fifty feet in distance. Still going southwardly a distance estimated from three hundred to five hundred yards, one next comes to a service station and tourist camp operated by Carter Gill, also on the western side of the highway. The highway in the vicinity of the scene of the accident is eighteen feet wide, with a six-foot dirt shoulder on each side.

The plaintiff spent the major portion of the above day hunting, having started out about 9:00 a. m., and quitting when darkness came. He then went out to the highway, and secured a ride on a bread truck for himself and dog to the town of South Hill. Upon his arrival there, he states he purchased from a "liquor store" a pint of whisky, from which he admits he subsequently took two drinks before the accident.

He then went to Pearson's service station. Here he met one B. L. Matthews and he admits that the two of them went to a shed back of the station, where they took a drink. Matthews states that they took several drinks from a quart bottle, or a bottle containing a fifth of a gallon. They went back into that station, where Gordon purchased and drank a bottle of beer, remaining there about fifteen minutes. Matthews invited Gordon to go home and spend the night with him, because he thought the plaintiff was "feeling pretty good, " and ought to have been in bed. Instead, the plaintiff went on down the road, saying that he was going to Gill's station, where he intended to "catch a ride" home. However, he went across the road to the service station of Willis, where he had some discussion relative to his dog's pedigree. According to Willis, the plaintiff, at that time, was "pretty well drunk." There is some testimony that he offered to sell his dog at this station for one dollar, and that he was subsequently ordered out of the station. He then returned to Pearson's, where he left his dog and gun. Here he was refused the purchase of more beer. Mr. Pulley testifying that he thought he had had enough to drink, and that "he was intoxicated--badly intoxicated, " and he would not have let him have the beer if he had observed his condition when he first came in.

The plaintiff then left and went on down to Gill's station. He does not remember whether he took any drinks while there or not, nor does he know how long he stayed there. He said that after "carrying on a lot of foolishness, " he sat down beside the stove and went to sleep. Mr. Gill said that the plaintiff looked "as though he had had something to drink." He awakened the plaintiff, and told him "that he had to get up, that he couldn't stay there and sleep like that." The plaintiff admits that while he was in this station, he "was right high." Gordon then left there, and went back northwardly up the road towards the scene of the accident.

The plaintiff's memory is hazy as to the happenings in the several service stations visited by him, and he did not remember the substance of his conversation with Matthews, nor the refusal of Pulley to sell him more beer.

The several witnesses testified variously as to the condition of the weather on that night, all stating that it was very dark. Some said that it was raining and drizzling, and others that it was disagreeable, foggy and misty; and the plaintiff testified that it was "kind of misty."

We will consider next the evidence of the plaintiff as to his further movements up to the time of the accident. He says he walked northwardly on the left-hand edge of the hard surface of the 'highway, the westerly side, towards South Hill, intending to go back to Pearson's service station. While he was walking in this manner, he saw the approaching lights of the defendants' automobile as it rounded the curve, which terminates at the State Highway Department's property. He says the automobile was four hundred yards distant in front of him when he first saw its lights. He continued to look at the approaching car from the time when he first saw it until the car was "but ten or not over fifteen steps" from him, at which time he pulled down the brim of his hat in order to shade his eyes; but still maintaining his position and watching the approaching automobile. He saw, and had his eyes on the car until the actual impact. He said he was so near to the left-hand edge of the hard surface that two steps would have put him on the shoulder of the road, where the car would have cleared him. He does not recall any car or cars were passing him bound northward at the immediate time of the collision; but does remember that some cars had passed him going north at about that time. When asked to explain why he didn't take the two steps over to the shoulder of the road to save himself, he replied, "Because I thought the car was clear of me, and that is why I didn't step off." He admits the car was on the hard surface of the road at the time it hit him.

It was shown by other evidence that at the time of the collision, and in the immediate vicinity, there were three cars proceeding northwardly, and at least one following the defendants' car proceeding southwardly. The middle of the three cars proceeding northwardly was being driven by Mr. Nickols with his wife, and was fairly close to the rear of the first car. Mr. Nickols saw the plaintiff by means of his own headlights, at about a distance of twenty feet. He did not see the car driven by Jones until the latter's car was clearing the car ahead of him, Nickols. Under the circumstances, he sensed an impending collision. When the Nickols' car and the car of the defendants were about opposite, or nearly past each other, the plaintiff was struck by the right front part of the defendants' car.

The only damage to Jones' car consisted of a bent right headlight, and possibly a slightly indented right fender. The speed of that car. was variously estimated at from fifteen to thirty-five miles per hour. Gordon, from his position, estimated it at from forty to fifty miles per hour, although he was unwilling to swear to it. The defendant, Jones, says he was operating at a speed of from fifteen to twenty-five miles per hour, and that because of the glare of the headlights of the oncoming automobiles, he did not see the plaintiff until he was within five or six feet of him, and after he had cleared the lights of Nickols' car, at which time the plaintiff was on the hard surface about four feet from its western edge. When he saw him, he "cut hard to the left and slapped his foot on the brake, " but was unable to prevent the collision. He stopped his car within a distance of its length.

Jones looked out, saw the plaintiff lying on the side of the road, and proceeded to Gill's station, and returned with Mr. Gill to the scene.of the accident to render necessary assistance.

Mr....