Twyman v. Adkins

• Decision Date: 10 June 1937
• Citation: Twyman v. Adkins, 168 Va. 456, 191 S.E. 615 (1937)
• Court: Virginia Supreme Court
• Parties: TWYMAN. v. ADKINS.

191 S.E. 615

TWYMAN.

v.ADKINS.

Supreme Court of Appeals of Virginia.

June 10, 1937.

Error to Circuit Court, Pittsylvania County; J. T. Clement, Judge.

Action by Douglas S. Adkins, administratrix of Lloyd M. Adkins, against F. W. Twyman. Judgment for plaintiff, and defendant brings error.

Affirmed.

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

W. W. Beverley and Beverley H. Randolph, Jr., both of Richmond, and R. P. Sanford, of Danville, for plaintiff in error.

Carter & Williams, Margaret L. Carter, George E. Bendall, and Tom Irvin Gill, all of Danville, for defendant in error.

SPRATLEY, Justice.

This is an action brought by Douglas S. Adkins, administratrix of Lloyd M. Adkins, deceased (hereinafter referred to as the plaintiff), to recover damages for the wrongful death of the intestate, in a collision between an automobile truck he was driving and an automobile owned and operated by F. W. Twyman (hereinafter referred to as the defendant).

A verdict was rendered by a jury for the plaintiff in the sum of $10,000. A. motion to strike out plaintiff's evidence and to set aside the verdict upon the grounds that it was contrary to the law and the evidence, and because of the granting and refusal of certain instructions, was denied by the trial court.

In view of the jury's verdict and the assignments of error, we will not undertake to set out in detail all of the evidence, but only that portion of it which has a substantial bearing, either on the merits of the case, or on the question of the propriety of the instructions given or refused.

The accident occurred at about 4:20 a. m, October 27, 1935, at a point about five miles west of Danville, on what is called the Mount Cross road, a paved state highway.

Twyman, a foreman employed in the Civilian Conservation Corps Camp, located on the Mount Cross road about eight miles west of Danville, on the night of October 26, 1935, drove his Dodge sedan from the camp into Danville. He then visited a tea room described as a dance hall and drinking place, located eleven miles west of Danville on another route. While at the tea room, he admits partaking of three drinks of whisky, and several witnesses testified that immediately after the accident there was a smell of whisky on his breath, and that he then talked, walked, and acted like a drunken man. He left the tea room around 12 o'clock with a companion, who drove him into Danville. He started on his return trip to the camp about one a. m, and just on the outside of the city limits, he picked up four young men enrolled at the camp. After driving about two miles west of Danville, and still six miles from camp, the motor of his car began to give trouble, and it appeared that the gas line was clogged. The road along which they were traveling is practically a succession of slopes or hills with short valleys between. After the trouble developed, Twyman and the young men with him got out of the car, and together pushed it over several hills for a distance of about three miles. Before the scene of the accident was reached, one of the young men from the camp left the car and went on to camp. The other three stayed with Twyman, and together they succeeded in getting the car over another hill, and after they had rolled it partly up the next hill, it was pushed back for a better start. When it started to roll forward, or westward, again, two of the boys got into the car together with the defendant. The car continued to roll of its own momentum for a short way up the grade westwardly, and when it would not go further, it was permitted to roll back, or eastward, until it came to a stop at a low point between two hills. The time was then fixed at about 3:30 in the morning, and the occupants of the car say it then had head and tail lights burning. The two boys, who had gotten into the car before it stopped, had fallen asleep from exhaustion. The third boy, after directing the defendant about parking the car, got into it, and after some discussion with the defendant, they also fell asleep.

At the place where the car stopped, there are guard rails and posts on each side of the road, and the distance between these guard rails is fifteen feet, the width of the hard surface. At a point twelve feet east of the guard rail, on the right-hand side going west, the shoulder of the road is four feet, four inches wide. There was also evidence that at a point fifty or sixty feet away westwardly from the scene of the accident, the car could have been pushed with slight effort to a broader shoulder completely off the road.

The night was dark, and the atmosphere was heavy and foggy. The color of the defendant's car was described as gray and about the same color as the weather was; and, therefore, difficult to discern as an automobile from any great distance. There was also evidence that later in the morning the fog was denser on the lower portions of the road. The defendant and the boy who stayed outside of the car testified that it was shoved to the right-hand side of the highway, with its right wheels off the hard surface. Twyman admitted after he had so parked the car, it occurred to him that it was in a dangerous position, and that if he had proceeded one hundred feet, he could have pushed the car entirely off the road. He also admitted that his battery was weak, and that it is possible the lights might have gone off.

A witness, G. E. Scarce, with a passenger in his car, bound east, met and passed the parked sedan from the front around 4 o'clock, a few minutes before the accident. Both testified that when they discovered the car it was standing still, parked without lights "in the middle of the road if not more"; that all four passengers in the car were asleep, and when they called to the occupants to, "Get that damn thing out of the road I" the man under the steering wheel (who appears to have been Twyman) raised up his head, looked around, said nothing, and laid his head back on the seat. None of the occupants of the parked car, however, recall this incident. Scarce stated that when he first discovered the car he was thirty-seven steps away from it, later correcting himself to twenty-seven steps away; and although he was running about forty-five miles per hour, with considerable effort he barely stopped in time to avoid a collision with it. Being in doubt as to whether he could get by, he did manage to stop his car when it was only a yard and a half away. It was then necessary for him to back his car to get in a position to pass on his right-hand side, and in such passing it was necessary for him to come within six inches of the guard rail or fence on his left-hand side and within six inches of the parked car on the right-hand side.

On the same night at 2:45 a. m. Lloyd Adkins, employed as a driver of a milk truck, left a dairy with a load of milk to be delivered in Danville and at the CCC Camp on the Mount Cross road. His brother-in-law, a boy of sixteen years of age, was riding as a helper. After stopping in Danville for a sandwich each, they proceeded towards the camp. The helper, Shel-ton, went to sleep as soon as they left Danville, and knows nothing more of what happened until after the accident.

The witness, Scarce, testified that after he passed the Dodge sedan, continuing on to Danville for a distance of slightly more than eight-tenths of a mile, he met the truck operated and driven by Adkins, which was running between thirty-five and forty miles an hour with proper lights, and that he had no difficulty in passing the truck and each turned on their dimmer lights for the passing.

It is evident that at the expiration of the time that Adkins took to travel this distance of less than a mile, his truck crashed into the rear end of the Dodge car. The Dodge car was knocked up the hill west a distance variously estimated at from twenty to seventy-five feet to the left-hand side of the road facing west, into and through the guard rail, while all of the occupants of that car were asleep. The impact caused the truck to turn over on its left side, and in turning over the driver, Lloyd Adkins, was pinned beneath the truck and died immediately as a result thereof. In the morning there was some indication of the skidding of wheels of a truck, or some other vehicle for a distance estimated to be about sixty-five or seventy-five feet back of where milk was spilled on the road. There were physical indications that the impact of the crash took place on the left rear portion of the sedan and left front portion of the truck.

The deceased was twenty-nine years of age, and left surviving him his widow, the administratrix, twenty-nine years of age, and three children by that marriage, respectively eight, five, and one years of age. He received from his employers a salary of $25 a week, and was furnished with a house, garden, wood, milk, and butter for his family.

There were a number of tests and experiments conducted following the accident, to determine within what space the parked sedan could be seen at night by an approaching car with proper lights on, and within what distance it might then be stopped. These experiments were, however, evidently not conducted under the same conditions as those under which the accident happened, because of different atmospheric conditions, the difference in cars, and because the test drivers were specifically looking out for a parked car. Yet, one of the witnesses making a test testified that while driving thirty-eight miles per hour at night with his lights on, he was unable to see another car parked where the Dodge sedan was located on the same road at the time of the accident until he was twenty-seven steps from it, and that although he slapped on the brakes of his car immediately, he skidded fifteen feet beyond the located point of the parked car. He approached from the same direction as Adkins, and further stated that after he got over the top of a hill or knoll about one hundred...