Unger v. Rackley

• Decision Date: 11 September 1964
• Citation: Unger v. Rackley, 205 Va. 520, 138 S.E.2d 1 (1964)
• Court: Virginia Supreme Court
• Parties: Lillian B. UNGER, Administratrix, etc. v. Ressie H. RACKLEY.

Page 1

138 S.E.2d 1

205 Va. 520

Lillian B. UNGER, Administratrix, etc. v.Ressie H. RACKLEY.

Supreme Court of Appeals of Virginia.

Sept. 11, 1964.

W. W. Whitlock, Mineral, for plaintiff in error.

Harold H. Purcell, Louisa, R. R. Parrish, Richmond, for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, WHITTLE, SNEAD, I'ANSON and CARRICO, JJ.

SPRATLEY, Justice.

Lillian B. Unger, administratrix of the estate of John H. Unger, III, deceased, the plaintiff, filed a motion for judgment against Mrs. Ressie H. Rackley, the defendant, seeking to recover damages for the wrongful death of John H. Unger, III, in an automobile accident.Defendant denied that she was guilty of any negligence; and, on the other hand, averred that plaintiff's decedent was guilty of contributory negligence.The jury returned a verdict in favor of the plaintiff for $15,000.00, which the trial court set aside on the ground that plaintiff's decedent was guilty of contributory negligence as a matter of law, in that he failed to keep a proper lookout and failed to keep his car under proper control, and rendered judgment in favor of Mrs. Rackley.

The trial court had previously refused to strike the evidence both at the conclusion of plaintiff's evidence and at the conclusion of all the evidence.

The plaintiff is here on a writ of error.She assigns error to the action of the trial court in setting aside the verdict of the jury, and entering judgment in favor of the defendant, to the admission and rejection of evidence, and to the refusal to grant certain instructions.The paramount and crucial question is: Did the court err in holding that plaintiff's decedent was guilty of contributory negligence as a matter of law?We are of opinion that the question must be answered in the affirmative.

There is little or no conflict in the material evidence, save as to the speed of the vehicle operated by Unger.Since the jury resolved all conflicts in favor of plaintiff, the evidence will be stated in the light most favorable to the plaintiff.

The accident occurred on May 29, 1961, at approximately 1:00 o'clock p. m., on Route 22 in Louisa county, when a Ford automobile owned and operated by John H. Unger, III, age 20, collided with a Ford pick-up truck owned and operated by Mrs. Rackley.Unger was proceeding in an easterly direction, and Mrs. Rackley, who had been proceeding on the same road in a westerly direction, was making a left turn into an intersection leading to the entrance of the grounds of the Louisa County High School.

Route 22, in the area of the accident, is 20 feet wide, with two lanes of traffic divided by white traffic lines and is hard surfaced.The weather was clear, the roadway was straight, and visibility was clear to each driver for a distance of 600 to 700 feet ahead.

Immediately prior to the accident, Mrs. Rackley was driving behind a pick-up truck operated by David Sacra, proceeding, as she was, in a westerly direction.Sacra, intending to pick up a pupil from the High School, turned to his right off the hard surface of the highway to the shoulder of the road, after giving both a right-hand signal light from his truck and a stop and slow signal with his hand.In the meantime, Mrs. Rackley began to pass Sacra's truck, and in doing so drove her car a short distance across the center line of the highway.She said, however, that since Sacra's truck had gotten completely off the hard surface of the road as she began to pass it, she did not have to move out of her lane of travel in order to get by the truck.

Sacra said that she began turning toward the intersection when she was 10 to 15 feet from it and that he did not see her give any signal for the turn.However, Mrs. Rackley stated that she did not begin to make the turn until she got 'to the center of the intersection.'She was then traveling at approximately 10 miles per hour.

The entrance road to the High School where it joins the hard surface of Route 22 is 63 feet wide, narrowing to 32 feet at a point 10 feet from Route 22.When the Rackley truck had gotten approximately one-half way across the eastbound lane of Route 22, the left front of her vehicle was struck by the left front of the Unger vehicle.Defendant's truck was knocked back into the road a distance estimated from 5 to 25 feet, and the Unger vehicle was turned around and came to rest in a ditch at a distance estimated from 15 to 25 feet from the point of the collision.Unger was killed by the impact, and a companion in his car, Noland Groome, was slightly injured.

There was a considerable difference among the witnesses as to the speed of the Unger vehicle.

Mrs. Georgia P. Musser, who was sitting on her front porch across the highway from the entrance to the High School, said she saw the Unger car as it proceeded for a distance of approximately 550 feet, prior to the collision, passing in front of her home; that it was traveling at an ordinary speed, that is within 55 miles per hour, the lawful rate on that highway; that she knew the Unger automobile; had driven it; and thought she was capable of approximating the speed of an automobile.

A defense witness, Preston Farmer, said that he met the Unger vehicle approximately half a mile west of the scene of the accident; and that he thought it was being driven by Unger at a speed of 50 to 55 miles per hour.

David Sacra, said that he only got a glimpse of the Unger car as it was coming toward him and could only guess at its speed.He testified that he had previously told a State trooper that he thought the Unger car was running 70 to 75 miles an hour.He further said that after he looked behind him and saw Mrs. Rackley's car cutting out toward the center of the road, he looked forward and the Unger vehicle was then approaching at a distance of 200 to 300 feet from the intersection.

Noland Groome, who was an occupant of the Unger car, said that he'blacked out' when he saw the Rackley truck coming across the road.He testified that when first asked about the speed of the Unger car, he told the investigating State trooper that it was traveling at 55 miles per hour when the accident occurred.It further developed that he had stated to plaintiff's counsel several months after the accident that the Unger vehicle was traveling at approximately 75 miles per hour, and he testified in court that he looked at the speedometer right before the accident and it registered 100 m. p. h.

Mrs. Ann Anthony, who was sitting on the porch with Mrs. Musser at the latter's home, estimated the speed of the Unger car as it approached the intersection at about 75 miles per hour.

Mrs. Rackley stated that she did give a hand signal before making the left turn; but admitted that she did not give the signal continuously as required by statute.She did not see the Unger car until her daughter, who occupied her car, called her attention to it.At that time, it was approximately 200 to 300 feet away from her.She further said:

'* * * I saw nothing coming, so, when I made my left turn I looked back behind me, and I had crossed the white line and my daughter said, 'Mama, there is a car coming.Coming fast.'You know a truck doesn't have a glass here and you have to bend like this to see this way.So, I bent this way, and it was down in front of that other house * * *.'

Asked if she was already making the turn at that point, she said: 'Yes, I had made that turn, that truck is long, so I had to look this way to see straight down the road.'

Asked what is the next thing that happened, she replied:

'The next thing that happened, I saw the car and I saw throught the windshield that he was in front of me, right beside the windshield, and I saw the car, then the next thing I had the sensation, I thought the car was turning over, I had a peculiar sensation of turning over, and then the next thing I was on the ground and my head was paining and I called Zula--* * *.'

Asked, 'Can you tell us your speed, Mrs. Rackley, as you were making that left turn?'

'A.Well, I didn't look at the speedometer but it couldn't have been over ten miles an hour, but it was in second gear and there was nothing to fear, I had the whole road, I thought.'

Section 46.1-215, 1960 Rep. Vol., Code 1950, sets out 'Required position and method of turning at intersections,' as follows:

'The driver of a vehicle intending to turn at an intersection or other location on any highway except as prohibited by § 46.1-214 or any local ordinance enacted pursuant to § 46.1-180 or § 46.1-185(3) shall do so as follows:

'(a) Right turn: * * *

'(b) Left turns on two-way roadways: At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.'

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