Twyman v. Adkins

• Decision Date: 10 June 1937
• Citation: 168 Va. 456
• Court: Virginia Supreme Court
• Parties: F. W. TWYMAN v. DOUGLAS S. ADKINS, ADMINISTRATRIX OF LLOYD M. ADKINS, DECEASED.

Page 456

168 Va. 456

F. W. TWYMAN v. DOUGLAS S. ADKINS, ADMINISTRATRIX OF LLOYD M. ADKINS, DECEASED.

Supreme Court of Virginia, Wythebille.

June 10, 1937.

Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. AUTOMOBILES — Speed — Section 2154(109) of the Code of 1936 — Does Not Require That Driver Be Able to Stop within Range of Lights. — Section 2154(109) of the Code of 1936, relates to speed on the highway having regard to traffic and other existing conditions, and is not broad enough to cover the proposition that the operator of an automobile must so operate his vehicle that he can stop within the range of his lights, or within the range of his vision.

2. AUTOMOBILES — Instructions — Speed — Requiring That Drivers Be Able to Stop within Range of Lights — Case at Bar. — In the instant case, an action to recover for the wrongful death of the driver of a truck which collided with defendant's automobile while it was parked in the middle of the highway on a foggy night with poor lights or no lights at all, defendant assigned as error the refusal of the trial court to include in an instruction a statement that while driving at night it is the duty of drivers to operate their motor vehicles so that they can stop within the range of their lights.

Held: No error. In the absence of a statutory provision upon which to base such a rule, the application of the rule and language asked for was too broad.

3. AUTOMOBILES — Care Required of Driver — Presence or Absence of Care Jury Question. — Reasonable care is required of automobile drivers, but that reasonable care is a flexible standard under the facts and circumstances of each case, and, whatever the degree of care required, its presence or absence, under the facts and circumstances of each case, is for the jury to determine.

4. INSTRUCTIONS — Must Have Basis in Evidence. — Instructions should be based upon the evidence.

5. AUTOMOBILES — Instructions — Sudden Emergency Doctrine — Sufficiency of Evidence on Which to Base Instruction — Case at Bar. — In the instant case, an action to recovery for the wrongful death of the driver of a truck which collided with defendant's automobile while it was parked in the middle of the highway on a foggy night with poor lights or no lights at all, defendant assigned as error the giving of an instruction for plaintiff under the sudden emergency doctrine, on the ground that there was no evidence to support it. The evidence showed that there was only a very short distance between the parked car, when it might have been first discovered, and the oncoming truck; that there was scant clearance left in which to pass it on either side; and that there was little time left to the truck driver to apply the brakes and to make a decision as to which side of the road he should take. There was physical evidence of skid marks on the road, and of the impact of the collision on each of the cars, on the left front of the truck and on the left rear of the automobile, showing an unusual situation arising because of the position of the automobile in the road.

Held: That if there was error in granting the instruction, it did not justify a reversal.

6. AUTOMOBILES — Contributory Negligence — Presumptions and Burden of Proof — Case at Bar. — The instant case was an action to recover for the wrongful death of the driver of a truck which collided with defendant's automobile while it was parked in the middle of the highway on a foggy night with poor lights or no lights at all.

Held: That the burden was upon defendant to show by a preponderance of the evidence any contributory negligence of plaintiff's decedent, in order to bar recovery.

7. AUTOMOBILES — Truck Running into Parked Car — Sufficiency of Evidence to Sustain Recovery for Truck Driver's Death — Case at Bar. — The instant case was an action to recover for the wrongful death of the driver of a truck which collided with defendant's automobile while it was parked in the middle of the highway on a foggy night, with poor lights or no lights at all. The evidence showed that the automobile could have been pushed to a place of safety with only slight effort and that defendant was aware of its dangerous position and that his battery was weak. There was only a small amount of clearance on either side of the car, and because of the condition of the road and the atmosphere, and the position of the parked car, the truck driver had only a few seconds in which to see, know and realize his danger. There was no evidence that he was operating the truck with other than ordinary care and prudence, or that he saw, or could have seen, the parked car in time to have avoided the collision.

Held: That the evidence was sufficient to justify the verdict of the jury in plaintiff's favor.

Error to a judgment of the Circuit Court of Pittsylvania county. Hon. J. T. Clement, judge presiding. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

W. W. Beverley, Beverley H. Randolph, Jr., and R. P. Sanford, for the plaintiff in error.

Carter & Williams, Margaret L. Carter, George E. Bendall and Tom Irvin Gill, for the defendants in error.

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

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 ten thousand dollars. 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 twelve o'clock with a companion, who drove him into Danville. He started on his return trip to the camp about 1 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, your 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...