Thornton v. Downes

• Decision Date: 21 April 1941
• Citation: 14 S.E.2d 345
• Court: Virginia Supreme Court
• Parties: THORNTON. v. DOWNES.

14 S.E.2d 345

THORNTON.

v.DOWNES.

Supreme Court of Appeals of Virginia.

April 21, 1941.

Error from Corporation Court of City of Danville; Henry C. Leigh, Judge.

Action by Catherine M. Downes, administratrix, etc., against Julian Carroll Thornton to recover damages for the wrongful death of E. W. Moss in an automobile accident. To review a judgment for the plaintiff, the defendant brings error.

Affirmed.

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

Aiken, Sanford & Johnson, of Danville, for plaintiff in error.

Meade & Talbott, of Danville, for defendant in error.

CAMPBELL, Chief Justice.

Catherine Downes, administratrix (plaintiff in the court below), brought this action against J. C. Thornton, defendant, to recover damages for the wrongful death of her intestate, E. W. Moss, which was caused by the negligent operation of an automobile owned and driven by the defendant at the time of the accident. There was a trial by a jury which resulted in a final judgment entered by the court in favor of the plaintiff in the sum of $10,000.

It is a well-settled rule that where a plaintiff has obtained a verdict and judgment, we must accept testimony given in his behalf, unless such testimony is incredible. Miller v. Jones, 174 Va. 336, 339, 6 S.E.2d 607.

In the case at bar, there is nothing incredible about the evidence adduced by the plaintiff, though it must be admitted that there is a conflict in the evidence. However, the jury has resolved all conflicts in favor of the plaintiff. This being true, the rule stated by Mr. Justice Browning in Oney v. Jamison, 175 Va. 420, 9 S. E.2d 346, 347, is applicable. There it is said:

"It should be unnecessary to say what we have so frequently said before, that when a litigant comes before this court with the favor of a verdict of the jury approved by the trial court he occupies the strongest position known to the law, and that, in such case, the facts should be stated and accepted in the light most favorable to him."

The facts determined by the verdict of the jury are as follows: The accident which occasioned the death of Moss took place on Main street in the city of Danville, at approximately 10:30 p. m. Moss, at the time of the accident, was sixty-five years of age, in excellent health and very active for a man of his years. He was employed by E. A. Jones who operates the Jones Pharmacy in School-field, a surburban town near the city of Danville. The night in question was a clear, cold one, and Moss, in a car driven by Jones, left the pharmacy at 10:15 P. M. for his home in the city. When Jones reached a point west of the bus stop near the intersection of Main street, which runs east and west, and Holbrook street, he stopped his car near the curb to let Moss get out. At the time of the accident there were no automatic signals operating and no traffic officer on duty at or near the intersection of Main street with Holbrook street. However, on the northwest corner of the intersection and within a short distance west of the point where the impact occurred, there was a lighted street light; also, a lighted street light was stationed a short distance to the east. After alighting from the Jones car, Moss left the curb on the north side of Main street and proceeded toward the south sidewalk. At the time Moss entered the street there were no cars either travelling along the street or parked along the northern sidewalk, but on the south side of the street there was one car parked just opposite the point where Moss was struck by the car of defendant. Main street, at this point, is 47.2 feet from curb to curb.

Moss, after proceeding in the usual manner from the northeast curb toward the opposite curb for a distance of twenty-one feet, stopped at a point approximately in the center of Main street to permit an automobile, operated by one Sam Thompson and proceeding east along the street, to pass in front of him. While Moss was thus standing in or near the center of the street, in close proximity to the two street lights, the defendant, accompanied by a young lady with whom he was engaged in conversation, was driving his automobile close to the center line westward on Main street and approaching Moss, with a street clearance of at least twenty-one feet from the point where Moss was standing.

F. H. Barber, a police officer who investigated the accident immediately after it occurred, testified that defendant told him "that he was going on up Main street, talking to his girl, and all at once Mr. Moss just sprang up from nowhere, and he had done hit him before he saw him".

It appears from the testimony of Sam Thompson, the operator of the car which Moss stopped to let pass, that a car was parked opposite where Moss was standing approximately in the middle of the street; that he was in plain view, as the arc lights were burning; that Moss "Kinda turned to face my car at the time Mr. Thornton struck him"; that Thornton did not blow his horn, that he was driving near the center of the street, that he did not slacken his speed of...