Stuart v. Coates

• Decision Date: 21 April 1947
• Docket Number: No. 3167.,3167.
• Citation: 186 Va. 227,42 S.E.2d 311
• Parties: STUART. v. COATES.
• Court: Virginia Supreme Court

186 Va. 227

42 S.E.2d 311

STUART.

v.COATES.

No. 3167.

Supreme Court of Appeals of Virginia.

April 21, 1947.

Error to Circuit Court, Westmoreland County; E. Hugh Smith, Judge.

Action by Elaine Joyce Coates, an infant, by her next friend, against Clara D. Stuart for personal injuries sustained as the result of being struck by an automobile driven by defendant. Judgment for plaintiff, and defendant brings error.

Affirmed.

Before HOLT, C. J., and GREGORY, EGGLESTON, SPRATLEY, and BUCHANAN, JJ.

R. O. Norris, Jr., of Lively, and Alexander H. Sands, of Richmond, for plaintiff in error.

Dabney Overton, of Warsaw, and George E, Allen, of Richmond, for defendant in error.

BUCHANAN, Justice.

Elaine Joyce Coates, a school girl fifteen years old, referred to herein as plaintiff, was struck and injured by an automobile driven by Mrs. Clara D. Stuart. By her next friend she brought suit alleging that her injuries were due to the negligence of Mrs. Stuart, and recovered a judgment for $9,000. This we are asked to reverse because of error said to have been committed by the trial court in granting and refusing instructions and because the verdict is excessive.

The accident happened about eight o'clock on the morning of November 14, 1944, on a straight section of State Highway No. 3 between Nomini Grove and Lyells in Westmoreland county. The hard surface of the highway where the accident occurred was 20 feet wide with shoulders six feet wide on each side. The road runs approximately north and south. A map was filed showing the road as straight for about 1300 feet north of the place of accident and more than 2000 feet south of it, with its elevations for about 1300 feet on each side of the place of accident. The elevations at each end of the 2600 foot section were practically the same, but between these points the road was not altogether level. There were small elevations and depressions, designated on the map as knolls and bottoms.

The plaintiff lived in the home of her parents on the east side of the road. Coming south from Nomini Grove toward Lyells, the way the defendant was driving, there is a slight downgrade for 600 feet to a bottom 134 feet north of plaintiff's home. From that bottom the road rises less than four feet to the top of the next knoll 300 feet south of plaintiff's home. From that knoll there is a slight downgrade for 560 feet to the next bottom, which is about six feet lower than the top of the knoll. The accident happened about half.way between the top of that knoll and that bottom. It was almost level from the Coates gate to the place of accident.

On the morning of the accident the plaintiff left her home, turned south, which was to her left, and started walking toward Lyells to catch the school bus to Warsaw, where she attended school. A little while before, Mrs. Stuart, the defendant, driving a Buick automobile, left her home in Mont-ross, to the north of plaintiff's home, starting to Richmond on this same road. In the car with her were Mrs. Sanford on the front seat, and Mrs. Harvey on the back seat. They overtook the plaintiff about 600 feet south of her home and struck her from the rear, inflicting the injuries for which this suit was brought.

As usual, the reasons given for the accident were widely different. The case made by the plaintiff and her witnesses was that the plaintiff was walking on the edge of the hard surface on her left side of the road. The road was dry, the sun was shining and it was a clear, bright, frosty morning. The plaintiff could see clear to Lyells in front of her about a mile away. She could be seen for about three-tenths of a mile back of her by a person driving an automobile as Mrs. Stuart was doing. Under those conditions and in that position on the road, she was without warning struck from behind by the automobile of the defendant and knocked into the ditch on the left-hand side of the highway. She lay there beside the road for sometime, suffering from concussion and other injuries later to be described, and was then taken in an ambulance to a Richmond hospital where she remained for five weeks, and for the first four or five days the doctors did not know whether she would live or die.

The testimony of the defendant and her witnesses was that it was not a clear morning, but hazy and foggy, particularly in the low places on the road; that Mrs. Stuartwas driving with care about twenty-five miles an hour on her side of the road with her left front wheel just about the center of the road--certainly not over the center-- and suddenly there was a dense fog in the depression ahead, and in the midst of the fog they suddenly came on a figure in the road which had not been visible before. The figure (the plaintiff) seemed to be exactly in line with the left front fender, according to Mrs. Sanford, and about six feet away when she first saw her. According to Mrs. Stuart, she was about half-way between the radiator cap and fender, and she was then not closer than 15 feet and not farther away than 18 or 20 feet. She described it in these words:

"Well, it was just as if somebody had lifted a curtain. That is the only way I can describe it. It doesn't sound possible, but I am just telling you exactly as it happened. It was just as if somebody, as we ran into a blank wall, and suddenly that blank wall was just opened and there stood this girl."

When she saw the child, she said, she turned or twisted the car to her right with all her strength, and just as she did so Mrs. Sanford yelled "Oh, there is a child, " or "You hit a child, " and the child was struck before Mrs. Sanford completed her sentence.

She testified that when she stopped her car (which the plaintiff's evidence showed was 123 steps beyond the place of accident) and went back to where the child was lying, the child asked who struck her, and she replied "I struck you, my dear." The child said "Why did you do that to me?" She replied "My dear, you were over on my side of the road. Why were you?" And the child answered "I don't know." She also testified that when the plaintiff's mother had come and was asserting that Joyce always walked off the tar, Joyce said "But mother, I was on the road this morning."

Mrs. Harvey, who was on the back seat, said she saw the fog when they were 45 feet or more away from it, but she did not see the child. She heard her sister, Mrs. Sanford, say "Look out, you are going to hit that child, " and then the impact came; that when Mrs. Stuart's car stopped they were out of the fog, and she looked back and could not see the child. She immediately went to inform Mrs. Coates, the child's mother. She said she did not hear any conversation between Joyce and Mrs. Stuart or between Mrs. Stuart and others after the accident.

The jury were well warranted in accepting the plaintiff's version of the case. It was amply supported by the testimony and by the physical facts. The plaintiff did not remember and did not think she made the statements to Mrs. Stuart. Mrs. Coates testified that Joyce did not make the statements Mrs. Stuart said she made in the presence of Mrs. Coates.

The plaintiff and nine other witnesses testified that the morning was clear and that there was no fog. Mrs. Coates could see the plaintiff lying beside the road when she came out her gate. Witnesses for the plaintiff testified that immediately after the accident they could see, and did see, the car and the people in the road at the scene of the accident from points ranging from 350 feet to more than 1000 feet back to the north from the Coates home. There was evidence that none of the occupants of the car said anything about any fog in talking about the accident.

Five witnesses testified to admissions by Mrs. Stuart at the scene of the accident that she was to blame for the accident; that a feather blew over her eyes and as she was trying to brush it away her car swerved to the left and struck the plaintiff on the left side of the road. One of these witnesses was a sergeant of the State police, who arrived at the scene and saw the plaintiff lying on the left shoulder of the road. He saw some glass lying 12 or 15 inches from the left edge of the road, nearly opposite to where the plaintiff was lying. The left headlight of the defendant's car was broken out. There were no brake marks on the road. He asked Mrs. Stuart how it happened, "and she told me that she was coming down the road going to Richmond, and the wind blew the feathers off of the hat down over her face, and she was trying to get the feathers off her eyes so she could see, and when she looked she was right on the child, and struck it." She showed him where the child was when she struck her, and that place was not over two feet from the left edge of the road. She was "standing right there and pointed down and told me that is where she hit her." The other witnesses, who included the superintendent of public welfare of Richmond county, testified to substantially the same statements by Mrs. Stuart. To some she said she was driving in the middle of the road "as all country people do." Another testified that the glass on the left-hand side of the road was from the headlight of defendant's car.

In addition to the glass and the position of the body on the left of the road, one of plaintiff's shoes was in the ditch on the left, her sock was up on the bank, her books were scattered in the ditch, her lunch box and lunch were in the ditch, and none of those things was on the hard surface of the road. If the plaintiff had been struck as the defendant and Mrs. Sanford testified, she would have been knocked through the air more than ten feet to the left by the car as it was being twisted to the right. It is difficult to understand how the conditions described could have resulted if the accident happened according to the defendant's version of it. Mrs. Sanford said it was "something I couldn't explain to save my life." The defendant said it did not sound possible. The jury evidently were of the...