Swisher v. Swisher

• Decision Date: 30 April 1982
• Docket Number: No. 791594,791594
• Citation: 223 Va. 499,290 S.E.2d 856
• Parties: Roy C. SWISHER v. Beulah L. SWISHER and Dana Sue Craun. Record
• Court: Virginia Supreme Court

Page 856

290 S.E.2d 856

223 Va. 499

Roy C. SWISHER v. Beulah L. SWISHER and Dana Sue Craun.

Record No. 791594.

Supreme Court of Virginia.

April 30, 1982.

Colin J. S. Thomas, Jr., Stauton (Wayt B. Timberlake, Jr., Timberlake, Smith, Thomas & Moses, Stauton, on briefs), for appellant.

M. Bruce Wallinger, Harrisonburg (Douglas L. Guynn, Wharton, Aldhizer & Weaver, Harrisonburg, on brief), for appellees.

Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

THOMPSON, Justice.

Beulah L. Swisher sustained personal injuries in a motor vehicle accident on May 19, 1975, while a passenger in an automobile operated by her husband, Roy C. Swisher, which collided with another automobile operated by Dana Sue Craun. The collision occurred in the intersection of Norwood Road (Secondary Highway # 1410) and Robin Hood Road (Secondary Highway # 1415) in Augusta County near the corporate limits of Staunton. Beulah sued both Roy and Craun, alleging that her injuries resulted from the concurring negligence of the two defendants, and she obtained a verdict and judgment against both. Roy appealed, alleging (1) that the evidence was insufficient to hold him liable; (2) that the trial court erred in permitting Craun to tender instructions covering Roy's liability to Beulah; and (3) that certain instructions improperly stated the pertinent law or were given without supporting evidence. We affirm the judgment of the trial court.

Robin Hood Road runs in a north-south direction on a relatively level grade. The Swishers were proceeding north to their residence. Norwood Road runs in a west-east direction on a downgrade. Craun was traveling downhill from west to east. No traffic lights or signs controlled the intersection. The investigating state trooper testified that he arrived at the scene at 8:58 p. m., that the intersection was "flat, blacktopped, and lighted by street lights," and that the weather was clear. He noted that Roy's car, sitting partially within the intersection, displayed a damaged front grill and bumper, while the Craun vehicle had a damaged right rear fender. The force of the collision had turned the Craun car around so that it was pointed in a westerly direction. The trooper did not take any measurements, photographs, or written statements, and did not attempt to establish the point of impact. He did recall that Craun told him that she did not see Roy's car until the impact.

Roy testified that he was traveling at 20 m. p. h. and looked before entering the intersection without perceiving any approaching vehicle. He entered the intersection, then saw Craun's car about eight paces to his left. He estimated Craun's speed at 35 m. p. h. Based on measurements which he made four years after the accident, Roy testified that at the point of impact he had proceeded 24 feet into the intersection while Craun had advanced only 15 feet. Beulah stated that she observed the Craun car only at impact, but did not recognize it immediately as a car because it moved "so fast." She testified that Roy told her that he did not see the Craun vehicle before he entered the intersection.

Craun testified that she descended the hill leading to the intersection in first gear at approximately 15 m. p. h. She never shifted from first gear. She did not completely stop at the intersection, but slowed. Craun admitted that she never looked for approaching cars, but relied on the advice of her mother, who was a passenger in the front seat. Craun saw Roy only when the cars collided.

Louise James, Craun's mother, corroborated Craun's testimony. She further stated that she sat in the front passenger's seat and looked to the right as their car approached the intersection. She could see clearly to the end of the street and did not observe an approaching vehicle. She first noticed Roy one second before the collision.

I. Sufficiency of the Evidence.

Roy argues that there was no evidence to establish any negligence on his part since he had the right-of-way at the intersection, and it was Craun's duty to yield to him. We disagree with his assertion. No evidence establishes which vehicle actually entered the intersection first, but the officer's testimony revealed that the Craun vehicle sustained damage to the right rear and Roy's vehicle to the front and grill. From this, a jury might well conclude that Craun had entered the intersection first, had almost crossed it, when Roy, proceeding north, struck her in the northbound lane. In Farmer v. Marine Center, Inc., 206 Va. 737, 740-41, 146 S.E.2d 265, 268-69 (1966), we said:

The mere fact that defendant's vehicle was on the right was not of itself sufficient to give it the right of way .... Under the statute, the driver of the vehicle on the left is required to yield the right of way to the driver of the vehicle on the right only when both vehicles approach or enter the intersection "at approximately the same time". "The phrase 'at approximately the same time' means that the determination of the question depends not upon a computation of time, but upon the determination of a fact by the jury." [Citations omitted.]

Under the evidence adduced the jury had a right to conclude that the two vehicles did not approach or enter the intersection "at approximately the same time", but instead, that plaintiff's car approached and entered it substantially first. In such a situation "neither driver had the right of way over, or was required to yield to,...