Stallard v. Atlantic Greyhound Lines

• Decision Date: 23 September 1937
• Citation: 169 Va. 223
• Parties: LUCY STALLARD v. ATLANTIC GREYHOUND LINES.
• Court: Virginia Supreme Court

Page 223

169 Va. 223

LUCY STALLARD v. ATLANTIC GREYHOUND LINES.

Supreme Court of Virginia, Staunton.

September 23, 1937.

Present, All the Justices.

1. VERDICT — Effect — Conclusiveness — Verdict Disapproved by Trial Judge. — Conflicts in testimony are commonly settled by a jury's verdict, although that verdict, when disapproved by the trial judge, is not so conclusive as one affirmed.

2. NEW TRIALS — Errors in Verdict — Verdict Contrary to Evidence or without Evidence to Support It. — A verdict should be set aside only when it is contrary to the evidence or without evidence to support it.

3. NEW TRIALS — Errors in Verdict — Verdict Supported by Evidence Which Jury Might Believe. — Where facts are involved, a verdict adequately supported by evidence which the jury had a right to believe should not be disturbed.

4. AUTOMOBILES — Collision between Bus and Truck — Imputation to Passenger of Truck Driver's Negligence. — In an action to recover for injuries sustained when a truck in which plaintiff was riding as a passenger ran into the rear of one of defendant's busses, the negligence of the truck driver, if any, could not be imputed to plaintiff.

5. AUTOMOBILES — Collision between Bus and Truck — Truck Driver's Negligence as Defense to Action by Passenger in Truck against Bus Company. — In an action to recover for injuries sustained when a truck in which plaintiff was riding as a passenger ran into the rear of one of defendant's busses, the negligence of the truck driver, if any, could not be invoked by defendant as a defense unless it was the sole proximate cause of the accident, or unless those in the truck were on some joint enterprise.

6. NEGLIGENCE — Sudden Emergency Doctrine — Defense Unavailing to One Who Brought about Emergency. — One confronted by a sudden emergency is not required to act with the utmost good judgment, and his failure to so act must not be charged against him, but such lack of good judgment must be in an emergency not brought about by him who relies upon it. If it was, the defense of error in extremis cannot avail.

7. AUTOMOBILES — Busses — Duty of Drivers to Keep Busses under Control. — Drivers of busses are charged with the duty of keeping them under control, particularly in situations where emergencies are always possible, and this duty is not lessened because some other vehicle follows too closely.

8. AUTOMOBILES — Duties as to Other Motor Vehicles — When One Automobile Is Following Another. — When one vehicle is following another along a public highway, the duties of the drivers of the respective vehicles are reciprocal, and the duties which each owes to the other are governed, to a large extent, by the circumstances of the particular case.

9. AUTOMOBILES — Collision between Bus and Truck — Questions of Law and Fact — Negligence of Bus Driver — Case at Bar. — In the instant case, an action to recover for injuries sustained when a truck in which plaintiff was riding ran into the rear of one of defendant's busses, the accident occurred when the bus, shortly after passing the truck, stopped suddenly just as it reached a bridge. The bridge was arched and narrow, and the arch prevented the bus driver from seeing a car which was approaching from the opposite direction until it was right on him, when he immediately applied the air brakes with which the bus was equipped. While the bus driver was confronted with a sudden emergency, he was familiar with the roadway and with conditions at the bridge, and yet was traveling at a speed of from forty to forty-five miles per hour, and the sole passenger in the bus testified that the stop was so sudden that he was raised from his seat. The jury rendered a verdict in plaintiff's favor.

Held: That the bus driver's negligence and its contribution to the accident were established by the jury's verdict.

10. AUTOMOBILES — Imputable Negligence — Imputation to Person Engaged in Joint Enterprise — Test of Joint Enterprise. — The "joint enterprise" which will render the contributory negligence of a driver imputable to a person riding with him must invest such person with some voice in the control and direction of the vehicle. The rule is founded upon the doctrine of principal and agent. The passenger must be so related to the driver as to make the maxim "Qui facit per alium facit per se" applicable.

11. AUTOMOBILES — Imputable Negligence — Imputation to Passenger of Driver's Negligence. — The negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver.

12. AUTOMOBILES — Collision between Bus and Truck — Imputation to Passenger of Truck Driver's Negligence — Case at Bar. — In the instant case, an action to recover for injuries sustained when a truck in which plaintiff was riding ran into the rear end of one of defendant's busses, plaintiff testified that she was to pay the truck owner two dollars for the trip, and that she had no control whatever over the truck or its driver.

Held: That plaintiff was a passenger for hire and none of the indicia of a joint venture were present.

13. RELEASE — Validity — Question for Jury — Case at Bar. — In the instant case, an action to recover for personal injuries sustained in an automobile accident, defendant relied upon a release. The release was secured the third day after the accident, and, although the claim agent who secured it testified that it was freely executed and that plaintiff knew perfectly well what she was doing, plaintiff tstified that she had no recollection whatever of having signed the release, and several witnesses testified that plaintiff was severely hurt, was in a nervous and upset condition for several days, was irrational and frequently unable to recognize her friends. The jury returned a verdict for plaintiff.

Held: That the question of the validity of the release was one for the jury.

14. RELEASE — Fraud and Imposition — Question for Jury. — While evidence of fraud and imposition in securing a release must be clear and convincing, it does not follow that the court can fairly take the question from the jury merely because the court, upon the facts proven, would have reached the conclusion that the release was valid. This can only be done where the evidence is clearly insufficient to support a different conclusion.

15. DAMAGES — Excessive Damages as Ground for New Trial — Personal Injury Actions. — The verdict of the jury in personal injury cases will not be set aside as excessive unless it is made to appear that the jury has been actuated by prejudice, partiality or corruption, or that they have been misled by some mistaken view of the merits of the case.

16. AUTOMOBILES — Damages — New Trial — Verdict for Seven Thousand Dollars for Personal Injuries — Case at Bar. — In the instant case, an action to recover for personal injuries sustained in an automobile accident, defendant contended that a verdict for seven thousand dollars was excessive. Plaintiff, a widow twenty-nine years old, testified that she suffered from severe headaches, excessive nervousness and uncontrollable crying spells. Her lip was drawn to one side and otherwise affected by a cut that had to be sewed up, and there was some obstruction in her nose. Several witnesses testified that she was in a bad condition for the next few days after the accident. She was unable to continue her studies at Radford State Teachers' College, which she was attending at the time of the accident.

Held: That there was no ground for setting the verdict aside as excessive.

17. AUTOMOBILES — Instructions — Release — Burden of Proof of Invalidity — Case at Bar. — In the instant case, an action to recover for personal injuries sustained in an automobile accident, defendant contended that an instruction given for plaintiff placed upon defendant the burden of proving that a release signed by plaintiff was valid. The instruction told the jury that the release had no more force or solemnity than any other written contract and that unless the jury believed that the minds of the parties met upon the terms of the writing, the same was not valid and should be disregarded. Instructions given for defendant told the jury that fraud was never presumed and that he who alleges fraud must establish it, and likewise, that undue influence was not presumed and must be established by a preponderance of the testimony.

Held: That from the instruction given for plaintiff there might have been some confusion as to where the burden of proof rested, but if such did in fact exist, it was cleared away by the instructions given at the instance of the defendant.

18. INSTRUCTIONS — Appeal and Error — Exceptions and Objections — Failure to Assign Reason for Exception When Taken. — Where no reasons were assigned for an exception to an instruction when it was taken, such exception cannot be considered by the Supreme Court of Appeals.

Error to a judgment of the Circuit Court of Smyth county. Hon. Walter H. Robertson, judge presiding. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

M. M. Long and C. R. Langhammer, for the plaintiff in error.

Warren & Cantwell and T. L. Hutton, for the defendant in error.

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

This is an automobile accident case in which there is that conflict in testimony quite common in litigation of this character. Such conflicts, however, are commonly settled by a jury's verdict, although that verdict, when disapproved by the trial judge, is not so conclusive as one affirmed.

In this case, Mrs. Lucy Stallard, plaintiff, did obtain a verdict which has been set aside.

When can this with propriety be done? It should only be done when the verdict is contrary to the evidence or without evidence to support it. Code, section 6251.

Governing principles are plain enough, nor is their application to the facts in a given case ordinarily a difficult matter. Sometimes, however, we are...