Tyree v. Lariew

• Decision Date: 04 December 1967
• Citation: 208 Va. 382,158 S.E.2d 140
• Parties: Brown Edward TYREE v. Edward B. LARIEW.
• Court: Virginia Supreme Court

Page 140

158 S.E.2d 140

208 Va. 382

Brown Edward TYREE v. Edward B. LARIEW.

Supreme Court of Appeals of Virginia.

Dec. 4, 1967.

Paul Whitehead, Lynchburg, for plaintiff in error.

Robert C. Goad, Lovingston, for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON and GORDON, JJ.

I'ANSON, Justice.

Plaintiff, Brown Edward Tyree, obtained a jury verdict in the amount of $9,000 against the defendant, Edward B. Lariew, for personal injuries sustained in an automobile accident. The trial court set aside the jury's verdict, entered judgment for the defendant, and plaintiff is here on a writ of error.

Plaintiff's sole contention is that the court erred in setting aside the jury's verdict and entering judgment for the defendant.

The accident occurred on May 4, 1963, around 9 p.m., near Gladstone, Virginia, while the plaintiff was operating defendant's 1962 Studebaker automobile in an easterly direction along U.S. Highway 60 at a speed of 30 to 35 miles per hour. The right rear tire on the car blew out, causing the car to leave the highway and go over an embankment. Plaintiff, an employee of the defendant, was on a mission for his employer at the time of the accident and had no knowledge of the condition of the tires on the car.

At the place where the car left the highway there is a slight curve in the road to the right. The speed limit was 55 miles per hour, but at or near the curve there was a sign indicating the maximum safe speed to be 25 miles per hour. The weather was clear, the night dark, and the highway dry.

A State trooper arrived at the scene of the accident after plaintiff had been taken by ambulance to a hospital for treatment of his injuries. He testified that the car was a total wreck, and was resting on all four wheels in a field approximately 40 feet below the highway. The right rear tire was cut up and flat but the other tires had air in them. He talked to the plaintiff approximately a week later, but plaintiff did not tell him what caused the accident.

When plaintiff was discharged from the hospital after a stay of ten days, defendant and his wife drove plaintiff, who was accompanied by his mother, to his home. Plaintiff testified that on the trip home, defendant told him the tires on the automobile 'won't much good, and he was sorry the accident happened.' Plaintiff's mother testified that defendant said at that time 'it was all his fault and he knew his tires was bad; he was going to get some new ones, but he hadn't done it.'

These statements attributed to defendant were denied by him and his wife at the trial. Defendant testified that he put two new tires on the front wheels 'the first of 1963'; that he had the two rear tires recapped on February 18, 1963; that he put one of the recaps on the right rear wheel and used the other for a spare.

Defendant also testified that he talked with the plaintiff in the hospital the day after the accident and accepted plaintiff's word that the accident was caused by a blowout.

None of the tires on the wrecked car was exhibited to the jury.

The reasons given by the trial judge for setting aside the jury's verdict and entering judgment for the defendant were stated by him in a letter opinion. There it was said that 'there was no evidence that the owner of the car had any knowledge that he had bad tires, as the record is not contradicted in that it discloses that the tires were fairly new, having been purchased sometime after the first of the year, just before the accident occurred in May. At that time the owner put on two new front tires and two new recap tires, so that the story told by plaintiff and his mother is contrary to all the facts and is not credible evidence in my opinion. * * *'

The statutory power conferred on the trial court by Code § 8--352 to set aside a jury verdict and enter final judgment can only be exercised when the verdict is plainly wrong or not supported by credible evidence. If there are conflicts in the testimony on material points, or if reasonable men may differ in their conclusions of fact, the trial judge cannot substitute his judgment for that of the jury. The weight of a jury's verdict, when there is credible evidence to support it, is not overborne by the trial judge's disapproval. Commonwealth v. McNeely, 204 Va. 218, 222, 129 S.E.2d 687, 689, 690 (1963); Comess v. Norfolk General Hospital, 189 Va. 229, 233, 52 S.E.2d 125, 128 (1949).

The test for determining the credibility of witnesses and the weight of their testimony was clearly and succinctly stated in Burke v. Scott, 192 Va. 16, 23, 63 S.E.2d 740, 744 (1951), where we said:

'* * * To be incredible, evidence must be either so manifestly false that reasonable men ought not to believe it, or it must be shown to be false by objects or things as to the existence and meaning of which reasonable men should not differ.'

See also, Thompson v. Letourneau, 199 Va. 560, 566, 101 S.E.2d 1, 5, 6 (1957); Daniels v. C. I. Whitten Transfer Co., 196 Va. 537, 544, 84 S.E.2d 528, 532 (1954).

We do not agree with the trial court that plaintiff's testimony and that of his mother relative to the statements made by defendant as to the condition of the tires on the automobile was so manifestly false that reasonable men ought not to believe it. Defendant said that on the day after the accident he took plaintiff at his word that the accident resulted from the blowout. Thus the jury could conclude that the cause of the accident was discussed when defendant drove plaintiff and his mother home from the hospital and that defendant did make the admissions concerning the condition of the tires. Moreover, after being put on notice that plaintiff believed the accident was caused by the blowout, defendant did not introduce in evidence for the jury's inspection any of the tires that were on his automobile at the time of the accident.

Defendant says there are additional reasons for affirming the trial court's action in setting aside the jury's verdict.

He argues that the alleged oral statements attributed to him, 'being the only evidence of negligence in the case and being contrary to or unsupported by all the other evidence,' are not sufficient as a matter of law to support the jury's verdict. We do not agree with this argument.

Declarations relative to a question...