Steele v. Crocker

• Decision Date: 15 January 1951
• Docket Number: No. 3724,3724
• Parties: JULIAN D. STEELE v. MARY STEELE CROCKER. Record
• Court: Virginia Supreme Court

Page 850

62 S.E.2d 850

191 Va. 873

JULIAN D. STEELE v. MARY STEELE CROCKER.

Record No. 3724.

Supreme Court of Appeals of Virginia

January 15, 1951.

J. Sloan Kuykendall and Henry H. Whiting, for the plaintiff in error.

H. R. Kern, Jr. and Harrison, Benham & Thoma, for the defendant in error.

JUDGE: SPRATLEY

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

Mrs. Mary Steele Crocker, while riding as a guest in an automobile owned and operated by Julian D. Steele, was severely injured when that automobile collided with another motor vehicle. In an action to recover damages for her injuries, Mrs. Crocker obtained a verdict and judgment for $10,000.

The plaintiff in the court below, Mrs. Crocker, 33 years old, a resident of Maryland, is the daughter of Julian D. Steele, hereinafter referred to as the defendant. She was on a visit to the home of her parents, a few miles south of Winchester, Virginia. She had one young child, was expecting the birth of another, and desired to be near her doctor whose office was in Winchester.

On February 4, 1948, Steele took his wife, Mrs. Crocker, and the latter's little girl by automobile to Winchester. The purpose of the trip was to enable the Steeles to purchase some groceries and have Mrs. Crocker consult Dr. Gibson, a pediatrician. After they had accomplished their purposes at Winchester, they started at 11:00 a.m. on the return trip home. En route their car, driven by Steele, had a collision with another automobile on the extreme eastern side of a three-lane highway, -- U.S. No. 1 -- in Frederick county, Virginia. The highway at that point runs generally north and south, and has a hard surface 28 feet in width. At the time of the collision, a little snow was falling and visibility was poor. The road was covered with snow and its surface very slippery.

Steele was driving his car in a southerly direction. He approached a hill which ascended a distance of 1,500 feet from a concrete bridge. Mrs. Crocker was seated on the front seat of the car and Mrs. Steele and the little girl on the back seat. When his car reached the bridge at the bottom of the hill, Steele saw three snow plows, in tandem formation, proceeding up the hill in front of him. They were engaged in pushing snow from the road to its west shoulder. The first snow plow, the one nearest Steele, was partly in the right lane of traffic and partly on the west shoulder of the road. The second was about half way up the hill and occupied the right lane, the southbound lane, and the third or front snow plow was in the center lane of traffic. Steele proceeded up the hill at 35 or 40 miles per hour. He pulled over to his left, passed the first two snow plows safely. He then turned further to his left over into the east lane, the lane for northbound cars, and passed the third or front plow when he was within approximately 50 feet of the crest of the hill. After he had passed the third snow plow, he observed a car approaching from the south in the northbound lane of traffic. He turned his car towards his right side of the road. The car immediately began to skid, got out of control, turned a complete circle, and struck the northbound car which had come to a stop on the eastern shoulder of the road.

James Lewis, the driver of the approaching car, said that he was driving slowly towards the north in the northbound lane of traffic, with his two right wheels on the shoulder of the road, because of traffic conditions; that he couldn't see over the hill and around the road as it curved to his right; that he first saw Steele's car when it was five car-lengths ahead of him, approaching in the third lane, the northbound lane of traffic; that when Steele got probably about three car-lengths ahead of him, the former's car began to skid; that he, Lewis, drove completely to the eastern shoulder of the road; that Steele's car continued forward, hit the left fender of his car, turned around in the middle of the road, came back, struck his car on the side, tipped over on to its side, and slid into the center lane. Two passengers in the car driven by Lewis testified to the same effect.

Mrs. Crocker sustained twelve fractured ribs, a compression fracture of the twelfth dorsal vertebra, a fracture of the right clavicle, cuts, contusions, and bruises on her hips and knees, and a punctured lung. She was taken to a hospital in Winchester where she remained until February 28th, and was thereafter given bed care at her father's home, with a registered nurse in attendance for several months. Her hospital and medical expenses amounted to $3,488.11.

Dr. Riley testified that upon the admission of Mrs. Crocker to the hospital, she was manifesting shock and a lot of pain. He called in the late Dr. P. W. Boyd to see her, because of the extreme nature of her injuries. She was pregnant at the time. As a result of the extreme pain which she suffered for many days, she was subject to uterine contractions which required 'frequent hopodermics of different types of medication' to prevent a threatened miscarriage.

Dr. B. S. Bennett, an orthopedic physician, examined Mrs. Crocker on May 7, 1949, sixteen months after the accident, and on November 21, 1949, the day before the trial of this case, twenty-one months after the accident. He said her condition was then 'static,' and there had been no essential change between his two examinations. He described her injuries in detail, stating that she had a deformity of the back which was curved in two directions, and a prominence of her right clavicle where the bone had been fractured. She required a surgical corset for the support of her back. She walked with a limp, which necessitated her wearing a specially constructed elevated shoe. He was unable to determine with any degree of certainty 'when, if at all,' she could dispense with those supports. He found the 'residuals of her injuries' still present, properly healed, but with the deformities mentioned, and also some evidence of an arthritic condition in the involved vertebra. In explanation of the 'residuals of her injuries,' he said, 'There is a curve in the back, there is a change in the posture, a change in the gait, deformity of the clavicle associated with pain, and the whole body mechanics of walking are altered by the change in the curve in the back from what they normally would be.'

Mrs. Crocker testified that all she remembered of the accident was that as they were driving along, she saw some snow plows ahead of her; that her father pulled to his left to pass them; and that as his car started to skid, she then saw the car with which it immediately collided. She was familiar with the highway in question, and knew her father was driving without chains.

Mrs. Crocker said her injuries had caused her extreme pain for many weeks; that she still had great pain, discomfort in her back, and was unable to sleep on her right side. She had trouble getting up when she was lying down, couldn't do any lifting, couldn't bend without her brace, became easily tired, and couldn't walk without pain. She had been unable to carry on her household duties and take care of her children without the employment of help.

Mrs. Julian Steele, the wife of the defendant, did not recall anything that happened, except seeing the snow plows proceeding slowly up the hill, and her husband pull his car over to his left to pass them.

There was no contradiction of any of the testimony of the physicians or Mrs. Crocker.

The defendant, Steele, said that, at the time of the accident, a light snow was, perhaps, falling, the roads were covered with snow, and he had no chains on his car. The road upgrade didn't seem to him to be bad, and he had had no trouble during that morning. He saw the three snow plows, and explained the accident as follows:

'After I passed the last snow plow that threw me over into the left-hand lane going south, and I saw a car coming up that lane, and I started to pull back for the right-hand side of the road, and my car went into a -- started to skid and was out of control.'

He 'thought' he was 75 feet ahead of the last snow plow, travelling about 30 miles an hour when he turned to his right, and his car started to skid. He had no idea how far it skidded before it hit the northbound automobile.

Both at the completion of the plaintiff's evidence and the conclusion of all the evidence, the defendant moved to strike the plaintiff's evidence on the ground that even if it showed Steele was guilty of gross negligence, Mrs. Crocker was guilty of contributory negligence as a matter of law, because she failed to remonstrate or caution her father as to his course of action. The motions were overruled.

The court gave six instructions to the jury. In one they were told that the defendant was guilty of gross negligence under the circumstances, and unless they believed from the preponderance of the evidence that the plaintiff was guilty of contributory negligence, as defined in other instructions, they should find their verdict for the plaintiff. The other instructions related to the question of contributory negligence and the amount of damages the plaintiff was entitled to, if any, not in excess of the sum of $25,000, the amount sued for, taking into consideration the temporary or permanent character of her injuries, and the effect upon her health and the performance of her duties.

There are fifteen assignments of error involving the sufficiency of the evidence to sustain the verdict and the granting and refusal of instructions. The principal questions involved, however, are whether defendant was guilty of gross negligence as a matter of law, whether the plaintiff was guilty of contributory negligence as a matter of law, and whether there was any proof of permanent injuries. These will be taken up in order.

Negligence, contributory negligence, and proximate cause are ordinarily questions for the jury. Spence v. American Oil Co., 171 Va. 62, 197 S.E. 468, 118...