Temple v. Moses

• Decision Date: 08 April 1940
• Citation: 8 S.E.2d 262
• Parties: TEMPLE et al. v. MOSES.
• Court: Virginia Supreme Court

8 S.E.2d 262

TEMPLE et al.

v.MOSES.

Supreme Court of Appeals of Virginia.

April 8, 1940.

Appeal from Circuit Court, Brunswick County; R. B. Spindle, Jr., Judge.

Action by Sallie B. Temple and others, administrators of the estate of John R. Temple, deceased, against John A. Moses for injuries resulting in death of the deceased, sustained in an automobile collision, wherein defendant filed a counterclaim. From a judgment for defendant on the counterclaim, the plaintiffs appeal.

Affirmed.

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

L. J. Hammack, A. S. Harrison, Jr., and B. A. Lewis, all of Lawrenceville, for plaintiffs in error.

Langhorne Jones, of Chatham, E. P. Barrow, of Lawrenceville, and Joseph Whitehead, Jr., of Chatham, for defendant in error.

SPRATLEY, Justice.

Sallie B. Temple, William J. Temple and Roy R. Temple, administrators of the estate of John R. Temple, deceased, instituted this proceeding against John A. Moses to recover damages for injuries resulting in the death of their intestate, received in a collision between an automobile owned and operated by John R. Temple and an automobile owned and operated by John A. Moses.

The defendant filed a plea of contributory negligence, a plea of not guilty and a counter-claim for his personal injuries. A special jury of twelve men returned a verdict for $10,000 in favor of Moses on his counter-claim. Their verdict was approved by the trial judge and judgment entered thereon.

The plaintiffs assign error to the refusal and granting of certain instructions by the trial court, the admission of certain evidence, and the refusal of the trial court to grant a new trial upon the ground of the incompetency of a juror and to set aside the verdict as contrary to the law and the evidence.

It is admitted that the verdict settled all conflicts in the evidence in favor of the defendant. It will, therefore, be necessary only to set out so much of the evidence as is most favorable to the defendant, and such as may be required to consider the defendant's assignments of error.

The collision occurred about eleven a. m, on June 11, 1938, on the heavily traveled primary State Highway No. 58, at a point on said highway where a private road or lane from a farm owned by the plaintiffs' intestate intersects the State Highway at approximately a right angle. The day was bright and clear and the roadways were dry. The farm, known as the "Reps Jones Farm, " is four miles west of Lawrenceville, Virginia. Route 58 is an improved road, with a tar surface of 21 feet and a ditch-to-ditch width of 36 feet. At the point of the collision, highway 58 runs east and west, and is straight for approximately one mile to the east and 500 feet to the west of the intersection. Beyond 500 feet to the west, the view east-wardly along the highway is obstructed by a knoll, which is 7.9 feet higher than the road at the point of the intersection. The farm lies to the south of Route 58, and the farmhouse, as shown by the exhibits, is on rising ground surrounded by a grove of trees. The distance from the house to the highway is estimated at from 500 yards to one-half a mile. The land adjacent to the road is cleared and, on the day of the accident, was covered with a stand of wheat approximately three feet high. That portion of the private road which lies within 300 feet of the intersection is below the level of the highway. Its grade is not uniform, there being a grade of more than 10% in the 50 feet adjacent to the highway, with the grade rising or falling as it extends from the highway, according to the contour of the farmland. The used portion of the lane is 11 feet wide; but it has a width of 21 feet from ditch line to ditch line. At its intersection with the highway it flares out and takes the form of a "Y, " having a width of about 20 feet.

There are conflicts in the evidence as to whether a truck coming out of the lane could have been seen above the stand of wheat by a person driving a passenger car eastwardly on Route 58 from the knoll, hereinbefore mentioned, to the intersection, and whether such a passenger car could have been seen by a person coming out of the lane in a truck.

On the morning of the accident, Temple, a man seventy-five years of age, had visited his farm and, having completed his business, left the farm driving his International pick-up truck. He traveled north on the farm lane as he approached Route 58 and entered Route 58, turning his truck westward or to the left.

John A. Moses, who was 36 years of age, was driving a two-door 1937 Model Ford sedan eastwardly along the state highway. The left front of the sedan struck the left side of the truck at or a little ahead of the door of the cab. The truck was pushed back downgrade a distance of 47 feet. It turned over on its side on the north of the road and laid partly in the ditch. The front of the passenger car was badly damaged. It stopped facing the east about 6 or 8 feet from the disabled truck. Temple and the wife of the defendant were killed, and the defendant was gravely and seriously injured. The five other passengers in Moses' car suffered injuries of a more or less serious nature.

Moses, accompanied by his wife, daughter, three other women and a child, was on his way to Norfolk. His wife and his daughter, 15 years old, were on the front seat with him, and the three women passengers were on the rear seat, the child, 6 years old, sitting on the lap of one of them.

Moses had driven from Chatham to the place of collision, a distance of about 90 miles, in approximately three hours' driving time. He and three of his passengers testified that he had consistently driven at a speed of from 40 to 45 miles an hour, because two of the passengers had requested, before starting the trip, that he drive slowly, since they were of a nervous temperament. Several witnesses who saw a car similar to that of Moses on the highway shortly before the collision estimated the speed of the car they saw at from 60 to 75 miles an hour; but were unable to identify the car as that of Moses.

Moses gave the following version of the collision:

"Q. When did you first see the Temple car? A. When it popped right out in front of me.

"Q. Then what did you do? A. I immediately applied my brake, slapped my hand on the horn button, and veered my car to the left; all in one motion. I saw the car pop out and I realized I was facing an emergency, and I put my foot on the brake, and slapped my hand on the horn button, and veered to the left, all in one motion, quicker than it takes me to tell it "Q. When you say it popped in the road, as you express it, in front of you? A. That is right.

"Q. Would you try to estimate how far you were from the accident when you saw the car? A. I would not attempt to estimate correctly. I would say, off hand, about the distance from here to the back wall.

"Q. Had you any previous knowledge that the automobile was approaching the road? A. None whatever.

"Q. Now, what happened after you had done that, do you know? A. After I applied the brakes?

"Q. Yes. A. By the time I did that, I cracked into him. I hardly got the brakes on."

The record does not show the distance in the court room from the witness stand to the back wall, estimated by Moses as the distance from which he first saw the Temple car. In the briefs, plaintiffs contend the distance was 30 feet and the defendants that it was 37 feet.

Moses further said that he had his car under thorough control; that he struck the Temple truck broadside and near the center; that he estimated it was traveling between 20 and 25 miles an hour; and that, at the time it was hit, it was wholly on the hard surface of the highway.

Mrs. Lucy A. Dix, a passenger in Moses' car, gave the following testimony: "I heard Mr. Moses blow and I raised right up when I heard him blow. I see the car come into the road. It seemed like it was going to place itself right in front of us, * * * I said, 'Lord have mercy upon us all, ' and folded my hands like that. That is all the time I had, and by that time we were into the crash." She also added that she had just been looking at the speedometer and it registered 40 miles per hour.

Mrs. Sophie Brewer, the wife of the tenant of Mr. Temple on the Reps Jones Farm, testified that on the day in question she was in her kitchen in the farmhouse, engaged in washing string beans to cook and putting them from one pan into another; that from a window in the front of her kitchen facing the highway she saw Mr. Temple as he drove from the farmhouse down the private road to the highway; that he slowed down, but made no stop before he went into the highway that when the front part of Temple's truck was on the highway the other car "running right fast" was up the road between two specific telephone poles; that she could see the whole side of the truck when it was hit; that her observation was purely from a casual glance, because she just happened to look up when she saw the cars; and that it did not occur to her a collision was about to take place.

Other evidence indicates that the distance from the point between the telephone poles to the intersection of the private road with the highway is 280 feet.

The truck had a length of 14 feet 1 ¹/₂ inches, and a width between its front wheels of 5 feet 1 inch. It was found to be in second gear after the accident.

There was also evidence that Temple had, on the morning of the accident, complained of rheumatism and had said that it was difficult for him to turn his head.

On the main highway there were markings leading from a scooped out place in the road, supposedly the point of impact, to the car and to the truck. The scooped out place in the road was 4 feet 8 inches from the north side of the hard surface and 19 feet 6 inches from the center of the intersection and was allegedly made by the brake drum of the passenger car. There were tire marks extending westwardly back from the point of impact...