Virginia E. & P. Co. v. Clark, Record No. 2512.

• Decision Date: 13 April 1942
• Docket Number: Record No. 2512.
• Citation: 179 Va. 596
• Court: Virginia Supreme Court
• Parties: VIRGINIA ELECTRIC AND POWER CO. v. BEULAH MAY CLARK, ET AL.

Page 596

179 Va. 596

VIRGINIA ELECTRIC AND POWER CO. v. BEULAH MAY CLARK, ET AL.

Record No. 2512.

Supreme Court of Virginia, Richmond.

April 13, 1942.

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

1. APPEAL AND ERROR — Petition for Writ of Error — Effect of Refusal Is to Affirm Judgment. — Where a judgment is rendered against a defendant and he files a petition for a writ of error and supersedeas, the effect of the refusal of the petition is to affirm the judgment against him.

2. AUTOMOBILES — Appeal and Error — Negligence of Defendant Established by Verdict, Judgment and Affirmance Thereof — Case at Bar. — The instant case was an action by a bus passenger against the bus company and the driver of a station wagon for injuries received when the bus and station wagon collided. Plaintiff recovered a judgment against both defendants and each defendant filed a petition for a writ of error and supersedeas, but the petition of defendant driver of the station wagon was refused.

Held: That the negligence of defendant driver of the station wagon was established by the verdict of the jury, the judgment of the trial court and the affirmance of the judgment by the Supreme Court of Appeals.

3. AUTOMOBILES — Duty to Keep Lookout — Failure Held to Constitute Negligence Proximately Causing Collision — Case at Bar. — The instant case was an action by plaintiff against a bus company for injuries received while riding in one of its busses. The operator of the bus testified that in obedience to a signal of a traffic officer who was escorting an army convoy he proceeded into an arterial street, and that he did not see an approaching station wagon until it swerved directly in front of the bus, causing the collision in which plaintiff was injured. It was shown by other testimony, however, that the station wagon was in plain view of the operator of the bus, had he kept a proper lookout.

Held: That defendant was guilty of negligence which either proximately caused or efficiently contributed to the collision.

4. INSTRUCTIONS — Exceptions and Objections — Law of the Case. — An instruction given without objection becomes the law of the case.

5. AUTOMOBILES — Duty to Passengers — Obedience to Signal of Traffic Officer Does Not Relieve Driver from Exercising Highest Degree of Practical Care — Case at Bar. — The instant case was an action by plaintiff against a bus company for injuries received while riding in one of its busses. The operator of the bus testified that in obedience to a signal of a traffic officer who was escorting an army convoy he proceeded into an arterial street, and that he did not see an approaching station wagon until it swerved directly in front of the bus, causing the collision in which plaintiff was injured. It was shown by other testimony, however, that the station wagon was in plain view of the operator of the bus, had he kept a proper lookout. Defendant contended that the operator of the bus was fully justified in obeying the police officer and acting as he did.

Held: That there was no merit in this contention since, even though the officer signalled the driver to proceed, the driver nevertheless should not have so proceeded if a reasonably prudent person similarly situated would not have so proceeded in the exercise of the highest degree of practical care for the safety of the passengers on the bus.

6. AUTOMOBILES — Duty at Intersections — "Cutting Corner" Held Competent Evidence that Such Action Was Contributing and Efficient Cause of Accident — Case at Bar. — The instant case was an action by plaintiff against a bus company for injuries received while riding in one of its busses. The operator of the bus testified that in obedience to a signal of a traffic officer who was escorting an army convoy he proceeded into an arterial street, and that he did not see an approaching station wagon until it swerved directly in front of the bus, causing the collision in which plaintiff was injured. The evidence showed that the operator of the bus was guilty of negligence in "cutting the corner" at the intersection in violation of section 2154(121) of the Code of 1936.

Held: That while the action of the operator in "cutting the corner" may not have been the sole proximate cause of the accident, it was competent evidence upon which to base a verdict that it was a contributing and efficient cause of the accident.

7. AUTOMOBILES — Verdict — Failure to Assess Larger Proportion of Damages against One Co-Defendant — Verdict Not Result of Misconception of Law — Case at Bar. — The instant case was an action by a bus passenger against the bus company, appellant, and the driver of a station wagon for injuries received when the bus and station wagon collided. Plaintiff recovered a judgment against both defendants in the sum of $7,000.00. An affidavit of one of the jurors was submitted in which it was stated that the jury was not informed that they might return a verdict against both defendants to be paid otherwise than equally and that had they known that such a verdict could have been lawfully returned they would have done so. The question was not raised in the court below and no instruction was requested which would have permitted the jury to assess against either defendant a larger proportion of damages, nor did the affidavit affirmatively show that the jury would have assessed defendant other than appellant with a larger proportion of the damages so found. It was assigned as error that the verdict resulted from a misconception of law by the jury.

Held: That the assignment of error was without merit and the contention that the jury would have assessed the other defendant with a larger proportion of the damages was but a mere inference.

Error to a judgment of the Hustings Court, Part II, of the city of Richmond. Hon. Willis C. Pulliam, judge presiding.

The opinion states the case.

T. Justin Moore and Archibald G. Robertson, for the plaintiff in error.

J. H. Rives, Jr., Ellsworth Wiltshire and John W. Fussell, for the defendants in error.

CAMPBELL, C.J., delivered the opinion of the court.

Beulah May Clark, plaintiff, brought an action at law against Virginia Electric and Power Company and W. S. Dunning, defendants, to recover damages for personal injuries sustained in a collision between a station wagon operated by Dunning and defendant company's bus on which she was riding as a passenger. There was a trial by a jury and the plaintiff recovered a judgment against both defendants, in the sum of $7,000.

Each defendant filed a petition for a writ of error and supersedeas. The petition of defendant, Dunning, was refused, the effect of which was to affirm the judgment against him. The petition of the company, which sought a writ of error against both the plaintiff and Dunning, was granted.

It is the contention of the company that the negligence of Dunning was the sole proximate cause of the accident resulting in plaintiff's injuries. There is no claim that the verdict was excessive.

The collision between a bus of the company and the station wagon, owned and operated by Dunning, occurred at approximately 12:55 P.M., at or near the intersection of Third and Canal streets in the city of Richmond. Canal...