Va. Stage Lines Inc v. Duff

• Decision Date: 14 October 1946
• Citation: 39 S.E.2d 634,185 Va. 592
• Parties: VIRGINIA STAGE LINES, Inc. v. DUFF.
• Court: Virginia Supreme Court

39 S.E.2d 634

185 Va. 592

VIRGINIA STAGE LINES, Inc.

v.DUFF.

Supreme Court of Appeals of Virginia.

Oct. 14, 1946.

Error to Circuit Court, Amherst County; Edward Meeks, Judge.

Action by Leonard J. Duff, administrator, etc., against Virginia Stage Lines, Incorporated, for wrongful death of plaintiff's decedent. Verdict and judgment for plaintiff, and defendant brings error.

Judgment affirmed.

Before HOLT, C. J., and HUDGINS, GREGORY, EGGLESTON, and SPRAT-LEY, JJ.

William Kinckle Allen, of Amherst, and Caskie, Frost & Watts, of Lynchburg, for plaintiff in error.

Williams, Robertson & Sackett, and Walter H. Carter, all of Lynchburg, for defendant in error.

HUDGINS, Justice.

This is an action instituted by the administrator of Eubren Marshall Duff against the Virginia Stage Lines, Incorporated, for the wrongful death of decedent. From a judgment for $8,000, entered on the jury's verdict, defendant obtained this writ of error.

The main contention of the defendant is that the evidence is insufficient to sustain the verdict of the jury.

The accident occurred at 9:30 P. M., on January 20, 1945, in Amherst county, at of near the intersection of U. S. Route 29 with Route 1210. Route 29 extends approximately north and south and is a main artery of travel. Its hard surface is 30 feet wide and is divided by broken white lines into three traffic lanes. Route 1210begins on the western side of Route 29 and leads off in a northwesterly direction at an angle of 47 degrees. While its average width is 12 feet, it is bell-shaped with its mouth approximately 68 feet wide at its jointure with Route 29. The bus of the Virginia Stage Lines, Inc., operated by Lloyd Hudson, was proceeding north from Lynchburg over Route 29 to Route 1210, and over this route to Monroe. The truck, with decedent at the wheel, was traveling south on Route 29. From the crest of a hill north of the intersection with 1210, the place of the accident, Route 29 is straight for about 1900 feet. This straightaway extends for approximately 900 feet south of the intersection, thus making a total straightaway of 2800 feet. From the intersection south, the roadway is up a six per cent. grade. From the intersection north, it is down a seven per cent. grade for approximately 600 feet to the culvert over Watts branch and up a less grade from that point north to a schoolhouse 1300 feet away. The bus was proceeding downgrade at a moderate rate of speed, and the truck at a speed estimated to be from 35 to 70 miles an hour. As the bus, traveling slowly at an angle, reached a point four feet west of the western edge of Route 29, its left front collided with the left front wheel of the truck. When the vehicles came to rest, the front of the truck was wedged against the bank south of the intersection with its left rear wheel resting against the left front of the bus, the front wheels of the bus having been pulled or dragged sideways approximately three feet; the body of the bus was at an angle across Route 29, the rear extending halfway across the middle lane. The front of the bus stopped six feet from the extreme south (or left) side of Route 1210 and four feet from the western edge of Route 29. In other words, although the bus was sitting at an angle, it blocked traffic for at least fifteen feet across the western half of Route 29. The damage to the bus was slight; the truck was practically demolished. Eubren Marshall Duff, the driver, and George Harris Duff were killed. The other two occupants of the truck apparently received only minor injuries.

In determining whether to sustain or set aside a verdict approved by the trial court, this court must ascertain whether the verdict is plainly wrong or without evidence to support it. The verdict settles all conflicts in the testimony. The successful litigant is entitled to have all reasonable inferences drawn in his favor. If, upon this view of the evidence, reasonable men may differ as to the conclusion to be drawn, the finding of the jury cannot be disturbed although the court, if sitting as a jury, might have reached a different conclusion. With these principles in mind, we review the testimony upon which defendant relies.

The gravamen of defendant's contention is that the driver of the truck was guilty of contributory negligence as a matter of law, in that (1) he failed to keep a proper lookout, (2) he was driving at an unlawful and terrific rate of speed, and (3) he failed to apply his brakes and stop his truck in time to avoid the collision.

This contention is based on the inference drawn by defendant from the difference in the size and weight of the two vehicles, the physical evidence visible at the scene of the accident, and the location on the highway of the truck at the time the bus began to make its turn into the secondary road.

The bus was 7 ³/₄ feet wide, 8 feet in height, 27 feet 10 inches in length and weighed 11, 515 pounds unloaded. It had a seating capacity of 35 passengers and at the time of the accident was crowded, with many passengers standing in the aisle. The two headlights and five marker lights on the front of the bus were illuminated. The truck was a 1¹/₂ ton truck, with a short wheel base of 131¹/₂ inches, weighing, with the cab, 3, 490 pounds. On the truck was a dump body weighing 1, 800 pounds, making the total weight 5, 290 pounds unloaded. On the seat in the cab were Eubren Marshall Duff, the driver, George Harris Duff in the middle, and Clarence Burley on the right with Arthur Duff sitting in his lap.

The impact caused the hood of the truck to be thrown forward 36 feet, the body to be torn from the chassis, and the occupants of the cab to be thrown out. The two whowere killed seem to have been lying under part of the wreckage. The tracks of the truck indicated that it pulled to its right on the shoulder 32 feet before it reached the northern edge of Route 1210 and continued across this highway for a distance of 50 feet before the impact.

The two surviving occupants of the truck testified that the four occupying the cab were seated in such manner as not to interfere with the decedent in his operation of the truck; that, as the truck came down the grade to Watts branch, they saw the headlights of a vehicle approaching from the south; that, as the truck crossed the culvert over the branch, the speedometer showed the speed to be 35 miles per hour, which speed was reduced to some extent as the truck continued up...