Thress v. Hackler

• Decision Date: 12 September 1930
• Citation: 154 S.E. 502
• Court: Virginia Supreme Court
• Parties: THRESS. v. HACKLER.

154 S.E. 502

THRESS.

v.HACKLER.

Supreme Court of Appeals of Virginia.

Sept. 12, 1930.

Error to Hustings Court of Roanoke.

Action by notice of motion for judgment by Margaret Ann Thress, an infant, against W. F. Hackler. To review a judgment in favor of defendant setting aside a contrary verdict, plaintiff brings error.

Reversed and rendered.

A. B. Hunt and T. W. Messick, both of Roanoke, for plaintiff in error.

H. M. Fox, of Roanoke, for defendant in error.

EPES, J.

This is an action brought in the hustings court of the city of Roanoke by Margaret Ann Thress, a nine year old child, against W. F. Hackler, to recover damages for personal injuries received by her on October 8, 1927, when she was struck by an automobile being operated by W. F. Hackler.

For convenience the parties will be hereafter referred to as plaintiff and defendant as they appeared in the trial court.

The jury found a verdict in favor of the plaintiff against the defendant for $5,000. On motion of the defendant the court set aside the verdict of the jury on the ground that the evidence fails to show that the defendant was guilty of any act of negligence; and entered final judgment for the defendant, dismissing the action. To this judgment a writ of error has been granted to the plaintiff.

There is but one question here presented for determination: Is there sufficient evidence to support a verdict finding the defendant guilty of negligence which was the proximate cause of the injury to the plaintiff?

The notice of motion for judgment alleges that the defendant was guilty of negligence in that he failed to keep a proper lookout, and also in that he was driving at an unreasonable and improper speed, having due regard to traffic on and the surface and width of the street and the surrounding conditions. There are other allegations of negligence, but it is unnecessary to notice them.

The plaintiff was struck by the automobile driven by the defendant on Grandin road in the city of Roanoke, at a point which is a short distance north of where Grandin road is intersected by Otterview avenue on the east and Maiden lane on the west.

Grandin road runs almost north and south, and going from south to north it has a descending grade, the fall being about 4¹/₂ feet to the 100 feet. North of said intersection it is a straight street 36 feet wide between curb lines. South of said intersection it is 38 feet wide between curb lines, and curves slightly to the westward on approximately a seven degree curve, which begins about the center of said intersection. It is smooth paved for its full width between curb lines, and a single track street car line runs along the center of it. North of said intersection the east rail of this track is 15¹/₂feet from the east curb line, and south of said intersection it is 16¹/₂ feet from the east curb line.

Otterview avenue, which is 30 feet wide between curb lines, extends eastward from Grandin Road. Maiden lane, which is 26 feet wide between curb lines, extends westward from Grandin road. While they intersect Grandin road opposite each other and form one east and west thoroughfare, they do not intersect it at right angles, nor do their curb lines intersect the curb lines of Grandin road exactly opposite each other. The north curb line of Otterview avenue makes an angle of approximately 78 degrees with the east curb line of Grandin road, and the north curb line of Maiden lane an angle of approximately 112 degrees with the west curb line of Grandin road. The north curb line of Maiden lane intersects Grandin road approximately 12 feet further north than does the north curb line of Otterview avenue, but the south curb line of Maiden lane intersects Grandin road approximately 16 feet further north than does the south curb line of Otterview avenue.

Both Maiden lane and Otterview avenue have concrete sidewalks approximately 4 feet wide on each side; but the center line of the concrete walk on the north side of Maiden lane intersects Grandin road approximately 18 feet further north than does the center line of the concrete walk on the north side of Otterview avenue.

Clore's Pharmacy occupies the southeast corner of Grandin road and Otterview avenue. Its side wall is approximately 22 feet from the south curb line of Otterview avenue; and it fronts approximately 20 feet on Grandin road.

At the time of the accident George Hopper was standing in front of Clore's Pharmacy. H. O. Weaver was sitting in an automobile, headed north, which was parked on the east side of Grandin road in front of Clore's Pharmacy, with its wheels almost against the curb. A. E. Fralin was sitting in his automobile, headed east, which was standing in Maiden lane near its intersection with Grandin road, where he had stopped to let the street car from which the plaintiff had alighted pass before proceeding on across Grandin road. Mrs. Wingfield and her husband, who lived on the corner of Grandin road and Maiden lane, were sitting on their porch.

About 4 o'clock in the afternoon on which she was injured, the plaintiff, then nine years and eight months old, and her sister, Virginia Thress, eleven years old, were passengers on a south-bound street car proceeding along Grandin road. When the street car reached the intersection of Maiden lane it stopped to discharge passengers.

The defendant introduced the motorman and other witnesses who testify that the street car was stopped with its front entrance opposite the sidewalk on the north side of Maiden Lane. But the plaintiff's evidence fixes the street car, which was 39 feet long, as having stopped with its rear entrance approximately opposite, or a few feet north of, the sidewalk on the north side of Maiden lane, with its front and extending into Maiden lane. The plaintiff's witness Fralin testifies positively to this effect; and this accords with the testimony of Virginia Thress that, had the plaintiff not been struck, she would have come to the curb about opposite Mr. Gray's walkway, which is approximately 30 feet north of the concrete sidewalk on Otterview avenue. The street car stood where it had stopped until after the plaintiff was struck by Mr. Hackler's automobile.

When the street car stopped, the plaintiff, Margaret Thress, and her sister, Virginia, got off the street car through its rear door on the western side. A drizzling rain was falling. Virginia got off first and went towards the western curb of Grandin road. The plaintiff did not follow her sister, but went around the rear end of the street car and towards the eastern curb of Grandin road. When Virginia had gotten almost to the western curb line, she looked and saw that the plaintiff was not following her, and turned and followed the plaintiff around the rear of the street car.

The street car was 8 feet wide, and the distance between the east side of the street car and the east curb of Grandin road was 14 feet.

Before they reached the curb line both the plaintiff and Virginia were struck by Mr. Hackler's automobile which was proceeding north on Grandin road. The plaintiff was in a few feet of the curb when struck, and was struck by the right front fender of the automobile. Virginia had just stepped out from behind the street car and was struck by the left side of the front of the automobile.

The testimony of the plaintiff and her older sister, Virginia, is very clear and distinct for children of their ages; and bears no Internal evidence of lack of verity.

The plaintiff...