Trant v. Upton

• Decision Date: 22 September 1932
• Citation: 159 Va. 355
• Parties: R. F. TRANT, INC. v. J. C. UPTON, ADM'R, ETC.
• Court: Virginia Supreme Court

Page 355

159 Va. 355

R. F. TRANT, INC. v. J. C. UPTON, ADM'R, ETC.

Supreme Court of Virginia, Staunton.

September 22, 1932.

Present, Campbell, C.J., and Epes, Hudgins and Browning, JJ.

1. AUTOMOBILES — Negligence — Injuries to Children — Case at Bar. — In the instant case, an action arising out of the death of a child four years of age struck by defendant's automobile, there was convincing evidence that the driver saw or could have seen the child in ample time to have employed the precautions required by law to avoid the injury.

Held: That the court did not err in refusing to set aside a verdict and judgment in favor of plaintiff on the ground that the verdict was plainly wrong and without evidence to support it.

2. AUTOMOBILES — Negligence — Injuries to Children — Case at Bar. — In the instant case, an action arising out of the death of a child four years of age struck by defendant's automobile, the driver of defendant's automobile attempted to explain his failure to see the child in the road by asserting that a parked automobile obstructed his vision. In this assertion he was supported by the testimony of a witness who was riding with him. This witness admitted that he saw the child. Both the driver and this witness admitted that they had testified before in regard to the accident, one before the coroner, and the other before the examining magistrate, and in neither instance was the parked car mentioned by them. Three witnesses to the accident testified that no car was parked there.

Held: That a verdict for plaintiff would not be disturbed upon the evidence as to a parked car.

3. AUTOMOBILES — Negligence — Injuries to Children — Evidence As to Condition of Brakes of Car — Case at Bar. — In the instant case, an action for the death of a child when struck by defendant's truck, there was unimpeached evidence that the truck, after striking and running over the child, was not stopped within 114 feet of the place of impact. The evidence was conflicting as to the distance within which the truck should have been stopped under normal conditions. The evidence was also conflicting as to the condition of the brakes of the truck. The weight of the evidence was with the contention of the plaintiff that the brakes were not in efficient order.

Held: That these conflicts in the testimony were settled in favor of the plaintiff by the verdict of the jury.

4. AUTOMOBILES — Negligence of Driver — Instructions — Harmless Error. — Where the jury could not have properly found any verdict other than a verdict finding the defendant's driver guilty of negligence, it is useless to consider the instructions bearing on that point, for even if there be error in them it is harmless error.

5. ARGUMENTS AND CONDUCT OF COUNSEL — Improper Argument — Argument Not Constituting Reversible Error — Case at Bar. — In the instant case, an action for the death of a child struck by a truck, alleged improper remarks of counsel for the plaintiff in his argument to the jury did not constitute reversible error.

6. AUTOMOBILES — Testimony as to Condition of Brakes — Impeachment of Defendant's Witness — Case at Bar. — A witness for defendant testified that the brakes of the automobile could have been better but that they checked the truck when applied. In contradiction of this a witness for plaintiff testified that defendant's witness had told him that the brakes were "no good" and that when defendant's witness applied the brakes the truck would not stop because the brakes would not hold.

Held: That there was no valid objection to this testimony as bearing upon the credibility of defendant's witness.

7. AUTOMOBILES — Evidence — Action for Death of Child — Mental Anguish of Mother — Condition of Mother. — The instant case was an action for the death of a child killed by a truck. Evidence was admitted that the accident happened on the 20th of December, four days before Christmas, and preparations were being made in the mother's home for the holiday celebration. Testimony of the mother's neighbors was also admitted that the mother was in an extremely nervous condition after the child was killed.

Held: That this testimony was admissible as having some bearing upon the measure of mental anguish of the mother.

8. EXPERT AND OPINION EVIDENCE — Opinion Evidence — Automobile Accident — Opinion of Witness That If the Driver of the Automobile Had Kept Straight Over on the Right-Hand Side of the Road He Would Not Have Struck the Child — Competency of This Evidence — Case at Bar. — The instant case was an action arising out of the death of a child struck by a truck. A witness who was driving in the rear of the truck, and who saw the accident, testified that there was sufficient room or space on the right of the child for the defendant's truck to pass.

Held: That this evidence was admissible as a statement of fact. Strictly speaking, the jury, with the facts before them, might have been as competent to judge of this matter as the witness, and thus the opinion evidence rule as to a non-expert witness was offended, but the harm, if any, was negatived by counsel for plaintiff eliciting from the witness the fact as to whether there was room enough to pass on the right.

9. AUTOMOBILES — Experiments in Evidence — Competency of Witness as Expert — Case at Bar. — In the instant case, an automobile accident, there was no error in the ruling of the court in admitting the testimony of a witness who made experiments in stopping the truck in question to ascertain the distance it would go when the brakes were applied. In the first place the evidence showed that from his official position, his former business and his experience and practice that the witness was competent to testify as an expert, though he said he was not one. The conditions existing at the time of the experiment were substantially the same as those obtaining when the accident happened.

10. EXPERIMENTS IN EVIDENCE — Stopping an Automobile — Conditions Substantially the Same. — The results of experiments, made at the scene of an accident for purpose of verifying or disproving particular theories as to how the accident occurred, may be admissible, if the conditions under which the experiments are conducted correspond substantially to those surrounding the accident. Thus, in an accident for injuries from being run over by an automobile, it is proper to permit evidence relative to the results of an experiment in stopping an automobile, such as the one involved in the collision, made under substantially the same conditions as those existing at the time of the accident.

11. DEATH BY WRONGFUL ACT — Damages — Amount of Damages Left to Discretion of Jury. — The question of the amount of the recovery, or damages, in an action for wrongful death is left to the discretion and judgment of the jury, and in the instant case the court could not say that the amount of damages allowed by the jury for the death of a child ($10,000.00) showed that this discretion had been abused.

Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Page, Page & Page, for the plaintiff in error.

Rixey & Rixey, for the defendant in error.

BROWNING, J., delivered the opinion of the court.

The defendant in error was the plaintiff in the trial court and the plaintiff in error was the defendant and as such they will hereinafter be designated.

The case is the result of an accident which happened on Indian River boulevard in Norfolk county, Virginia, just in front of plaintiff's home, on Saturday, the 20th of December, 1930, about 1:30 P.M., when the plaintiff's child, Margaret Lucille Upton, about four years old, was run over and killed by the defendant's Chevrolet truck, which was driven at the time by the defendant's employee, J. L. Gaylord. The facts sufficiently stated as is necessary are as follows: The plaintiff's residence is situated on the boulevard about twenty feet from the sidewalk. On one side is another residence and on the other a vacant lot and just beyond and contiguous thereto is a street called Wingfield avenue which intersects with the boulevard at right angles. The boulevard is of concrete and is sixteen feet wide. The two houses mentioned are the only residences on the boulevard in that vicinity and at that time there were no buildings of a public nature, such as school houses and the like, in that neighborhood.

The defendant's truck was proceeding in the direction of Norfolk at a speed estimated from thirty-five to sixty miles an hour, the driver placing his speed at thirty-five miles and Miss Upton, an aunt of the child, who saw the car approaching, saying that she thought it was about fifty-five or sixty miles an hour. The boulevard is straight for a considerable distance in each direction from the point of the accident. An automobile, which was about two-tenths of a mile behind the truck, was going in the same direction and the scene of the accident and its incidents were observable to the driver. The mother and aunt of the child were at the house of the plaintiff at the time on the side porch and heard the truck approaching and saw it. The mother had called to the child and told her to put up her playthings and come to bed. The child was playing at the steps of the side porch at the time and at the call of her mother started around to the other side of the house out of the sight of her mother to put up her toys. The little girl was seen, by a man who was riding in the defendant's truck, sitting at the right of the driver, and by the driver of the automobile which was following defendant's truck, to run across the boulevard to a point three or four feet off the concrete and stop and pick up something and then turn and run back when she was struck at a point near the middle of the boulevard by the front bumper of the truck. The truck was stopped at a point opposite...