Via v. Badanes
| Decision Date | 07 March 1949 |
| Court | Virginia Supreme Court |
| Parties | VIA . v. BADANES et al. |
Error to Circuit Court, Fairfax County; Paul E. Brown, Judge.
Action by Betty Jean Via against B. I. Badanes and others to recover for injuries sustained in an automobile collision. To review a judgment striking her evidence from consideration of the jury, plaintiff brings error.
Judgment reversed and cause remanded for a new trial in accordance with opinion.
Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.
James H. Simmonds, of Arlington, and George A. Glasgow, of Washington, D. C, for plaintiff in error.
Frank L. Ball, of Arlington, Gardner L. Boothe, of Alexandria, and Robert A. Ryland, of Arlington, for defendants in error.
Betty Jean Via, a guest in a Ford sedan driven by Victor Parker, was injured in a collision between the sedan and a Ford truck driven by George E. Bufano. The evidence she introduced in an action to recover damages for personal injuries against the drivers of the vehicles and their respective owners, was, on motion of defendants, stricken from consideration of the jury.
Plaintiff concedes that her evidence is not sufficient to prove that Victor Parker, the driver, was acting as the servant or agent of Frank Parker, the owner of the sedan, and hence made no assignment of error as to the action of the court in dismissing Frank Parker as a party defendant. She charges Victor Parker with gross negligence and George E. Bufano and B. I. Badanes, his principal, with simple or ordinary negligence. The only question presented is whether her evidence was sufficient to submit the issue of such negligence of either, or both, drivers to the jury.
At approximately 1:15 a. m. on February 9, 1947, Parker left the Pennsylvania Central Airlines Club, driving a Ford sedan. He had three passengers in the car--Ruth E. Perry, who was seated to his right on the front seat; Betty Jean Via, the plaintiff, and her husband, who were sitting on the back seat. The plaintiff was leaning over1 in the lap of her husband of three weeks, with her arms around him and facing the rear. Parker had driven in a northerly direction along the Mount Vernon Memorial Boulevard approximately three-fourths of a mile, when the sedan collided with the truck which was being driven in an opposite direction by George E. Bufano.
There were four persons riding in the cab of the truck. Miss Francis Midkiff was to the right of the driver, James I. Gardner to her right, with Miss Bernadine Reeves in his lap. Another passenger was seated on a box in the body of the truck. Several occupants of the vehicles, including the plaintiff, were severely injured, and the front of each vehicle was badly smashed.
The boulevard, at the scene of the wreck, is about level, straight and forty feet wide, divided into four traffic lanes, with a black mark six inches wide down the center. The center of neither the two northbound nor the two southbound traffic lanes is indicated by a white or black line, but this center is evidenced by a groove or slight depression made in the hard surface when it was constructed of concrete, poured in sections ten feet wide.
Two United States park police officers reached the scene a few minutes after the collision, but testified that they could not form an opinion from the physical facts as to which vehicle had crossed the center line, because They further stated that "it appeared that the left front wheel of the truck collided with the left front wheel of the passenger car."
Only three eyewitnesses to the collision were called--the drivers of the two vehicles, who were examined as adverse witnesses, and Ruth Perry.
Parker, plaintiff's host, testified that he was driving north in the passing lane for northbound cars, at a moderate rate of speed--35 to 40 miles per hour. He was not trying to pass a car in front of him, but was driving in the passing lane because ice and snow extended several feet from the right-hand side of the boulevard into the right-hand traffic lane which made it slick and slippery. He saw the lights of only one car approaching, but paid no particular attention to-them until the vehicle was within forty or forty-five feet of him. He continued straight ahead in the northbound passing traffic lane and did not turn to his left across the center line. The night was clear, his lights were burning, and he could see ahead for a distance equal to the length of several city blocks. The only vehicle he saw approaching from the opposite direction was the truck and he did not know whether or not it was driven across the center line in front of him.
The driver of the truck testified that he was driving at approximately 35 miles an hour south in the extreme right traffic lane when he overtook another car traveling "pretty slow;" he pulled to the left into the other southbound traffic lane with the intention of passing. He had straightened out in the passing lane and had driven 75 to 100 feet before the collision. He did not see the lights of any northbound car approaching until the sedan was "a foot or two in front of me." At that time he was about 5 feet behind the car he was attempting to pass. He was positive that he stayed to his right of the center line of the boulevard and never crossed it. The night was clear, his truck had been recently inspected, his lights were shining, and he could see "approximately two or three city blocks in front" of him.
The photographs of the vehicles taken by the two policemen after the collision and before the cars were moved, show that the left rear tire of the truck was flat. However, Bufano testified that the tire did not become deflated until after the impact.
If the statements of the two drivers to the effect that neither vehicle crossed the center of the boulevard be true, then the only inferences to be drawn therefrom is that each vehicle was being driven so close to the center of the boulevard that neither could pass the other in safety. Both admit, and the physical facts establish, that there was a head-on collision between the two vehicles, which, under the circumstances, could not have occurred unless one or both of the drivers were guilty of negligence.
The only other eyewitness who testified was Ruth Perry. She said that a few moments before the accident she was leaning over taking off her shoes as her feet were cold and she intended to sit on them to get them warm. When she straightened up from this stooped position she saw the lights of the truck which "seemed to be coming right toward our car" and the car she was in "was going straight to it." She realized that danger of a head-on collision was imminent, and hollered to Victor Parker "to lookout." The crash followed immediately. She thought Parker was driving on his side of the center of the highway.
While plaintiff violated no duty she owed for the safety of herself or others, nevertheless, in order to recover compensation, she must carry the burden of proving that the injuries she sustained were the direct result of the negligence of one or both drivers who owed her the duty of exercising proper care for her safety. The testimony, when considered with the physical facts, makes out a prima facie case, and the issues of negligence should have been submitted to the jury.
Bufano, on a straight, level highway, forty feet wide, turned out of one traffic lane into another to pass a car traveling in the same direction. If, at the time, he had kept a proper lookout he would have seen the sedan approaching from the opposite direction traveling on or near the center of the highway. He had the right to assume that the driver of the sedan would keep to the right of the center, but be knew, or should have known, from the position of the sedan and the car in front of him that the movement of the cars would create a narrow passage between the car in front of him and the sedan if he continued in his attempt to pass at that particular moment. He says that he had completed his turn and had "straightened out" in the left southbound traffic lane 100 feet before the collision. As the sedan and truck were traveling at approximately the same rate of speed, the sedan was then 100 feet south of the point of impact or 200 feet from the truck, with its headlights on and burning.
The situation required him to be on the alert, to have his truck under control to prevent it from colliding with either the northbound sedan or the other southbound vehicle, and, if necessary, to reduce his speed and turn to his right from the center line, on or near which the physical facts show that he was traveling. He did neither. His only excuse for his inaction was that he did not see the lights of the sedan. He was asked:
This witness does not deny what other witnesses affirm that the headlights on the sedan were burning and that it was approaching at 35 to 40 miles an hour. Under these circumstances, the testimony of Bufano himself is an admission that he did not maintain a lookout.
On cross-examination, he was asked: ...
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