Virts v. Bailey
| Citation | 968 F.2d 1213 |
| Decision Date | 07 February 1992 |
| Docket Number | No. 91-1018,91-1018 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Terry Lee VIRTS, Plaintiff-Appellant, v. William Carl BAILEY; Lewis D. Craven, Defendants-Appellees. . Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Argued: Richard H. Middleton, Jr., Middleton & Anderson, Savannah, Georgia, for Appellant.
Robert Holmes Hood, Mark V. Evans, The Hood Law Firm, Charleston, South Carolina, for Appellees.
On Brief: Elizabeth F. Bunce, Middleton & Anderson, Savannah, Georgia, for Appellant.
Before ERVIN, Chief Judge, NIEMEYER, Circuit Judge, and SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.
Appellant Terry Lee Virts was injured when he pulled his motorcycle into the passing lane in front of a truck driven by William C. Bailey and owned by Lewis D. Craven. Mr. Virts filed a lawsuit, alleging negligence, against both the driver and owner of the truck. The case was tried to a jury in October of 1990. The jury returned a verdict for Defendants. Appellant's motion for a new trial was denied on December 12, 1990. Appellant then filed this appeal claiming that the District Court erred in excluding certain evidence and improperly instructing the jury on the doctrine of last clear chance. Finding Virts' contentions to be without merit, we affirm.
On April 24, 1987, four vehicles were traveling eastbound on South Carolina highway Route 21 near Branchville, South Carolina. Route 21 is a two-lane country road and at the time of the collision, visibility was clear for a mile in both directions. On the left side of the street lay a ditch and woods. A recently planted cornfield bordered on the right.
Ms. Lorna Guerra, then Mr. Terry Virts' fiancee and now Mrs. Lorna Virts, drove the first car, a red Mustang. Mr. Virts rode two to four car lengths behind his fiancee on a 1981 Harley Davidson motorcycle. Ms. Joyce Bolin followed Mr. Virts in a blue Mustang. All three of these vehicles traveled at approximately 45 to 50 miles per hour ("mph"). Mr. William Bailey operated the fourth vehicle, a truck loaded with fertilizer for his uncle, Mr. Lewis Craven. Mr. Bailey drove at approximately 55 mph.
Mr. and Mrs. Virts were returning from a motorcycle shop where Mr. Virts had just had a "top end" job done on his Harley. To properly break in the new engine, Mr. Virts could not exceed 50 mph in the first 300 to 500 miles.
As the vehicles proceeded, Mr. Virts pulled out into the passing lane alongside his fiancee. Mr. Virts did not use his blinker when passing. Georgia, the state in which the bike is registered, does not require turn signals on the bike Mr. Virts owned. Accordingly, his motorcycle was not equipped with them.
Mr. Franklin Metts and Ms. Bolin both observed Mr. and Mrs. Virts talking back and forth to each other as they traveled down the highway. As the cars passed, Mr. Metts noticed something in Mrs. Virts' hand. Ms. Bolin estimated that the two vehicles traveled side by side, with Mr. Virts in the passing lane, for approximately 45 seconds.
Mr. Bailey wanted to pass the three vehicles, and was traveling at 55 mph in order to do so. The maximum speed of the truck is 55 mph. As he approached Ms. Bolin's Mustang, Mr. Bailey put on his turn signal and pulled out to pass. Although he saw Mr. Virts in the left hand lane in front of him, he could not decrease his speed in time to avoid hitting Mr. Virts. He did not realize Mr. Virts was not accelerating past his fiancee.
After the accident, Mrs. Virts asked Ms. Bolin to retrieve her camera and some other belongings from the car. Upset, Mrs. Virts expressed remorse for her actions, stating that the accident "was her fault" because she should not have been taking pictures of her fiance on the highway. Mrs. Virts offered the same apologies to Mr. Bailey when the two sat in the hospital following the collision.
Mr. Virts did not see Mr. Bailey's truck approaching. Ms. Bolin did not notice Mr. Bailey's truck until he was in the left-hand lane making a passing maneuver. Although Mr. Bailey testified that he braked and blew his horn in order to avoid hitting Mr. Virts, no other eyewitnesses testified that they heard his truck's horn nor that they saw him brake. There were no skid marks at the point of impact, but the truck had anti-skid brakes.
At issue in the case below was whether or not Mr. Virts' own contributory negligence barred his recovering any damages. The appellant's theory presumed that if Mr. Virts traveled at 45 mph and Mr. Bailey at 55, Mr. Bailey had the last clear chance to avoid the accident. He simply needed to pay better attention to all the vehicles he attempted to pass, and appreciate the fact that the sound of the motorcycle probably drowned out the sound of his oncoming truck. Since the speed differential was only 10 mph, Mr. Bailey had ample time to slow down and avoid the accident.
Appellees, however, contended that the Virts' own negligent behavior counteracted any liability appellees had. Appellees asserted that Mr. Bailey attempted a safe passing maneuver at a reasonable speed. They argued that no reasonable person would have expected Mr. Virts to ride alongside his then fiancee for the extended period of time he did.
We first review the trial court's exclusion of deposition testimony from Mr. Lewis Craven. Appellant wished to introduce evidence of Defendant Craven's failure to have a South Carolina hauling certificate at the time of the accident. 1
In his first complaint, appellant named the Integral Insurance Company as a defendant. By doing this, appellant complied with South Carolina's statutory method of redress when a public hauler is involved in an accident. At one point in his deposition, Mr. Craven testified that he was granted a South Carolina Public Service Commission certificate prior to the accident.
Immediately before the scheduled November 1989 trial, however, appellant learned that Mr. Craven did not have a certificate as he had indicated. The state had approved Mr. Craven's application, but would not issue his certificate until he supplied the Commission with proof of insurance. A letter written by the Commission admonished Mr. Craven not to haul until he received the certificate. Mr. Craven received the certificate on May 7; the accident occurred on April 24. As such, the insurer was not a proper defendant.
When apprised of this information, the district court granted a continuance until October 1990 so that the individual appellees could prepare their own defenses. In the subsequent trial, the appellant sought to establish negligence per se by proving Mr. Craven's lack of a Public Service Commission Certificate. Appellant also wished to impeach Mr. Craven with his deposition testimony regarding the issuance of the certificate. The trial judge ruled against appellant and excluded evidence concerning Mr. Craven's lack of certification.
Appellant confronts an abuse of discretion standard. United States v. Covelli, 738 F.2d 847, 854 (7th Cir.), cert. denied, 469 U.S. 867 (1984); Bonaparte v. Floyd, 354 S.E.2d 40, 47 (S.C. App. 1987) ().
The trial judge accurately stated South Carolina law when articulating his reason for excluding the cross examination:"[T]he violation of a statute, although declared negligence per se, must be shown to have been the proximate cause of the injury." Seay v. Southern Ry. Carolina Div., 31 S.E.2d 133 (S.C. 1944). There is not one shred of evidence that would support appellant's position that Mr. Craven's alleged violation of the statute was a proximate cause of Mr. Virts' injuries. Thus the evidence was correctly excluded as irrelevant.
Furthermore, a close examination of the deposition transcript reveals that Mr. Craven, after some confusion about the date of issuance, answered the question truthfully. Additional questions by Mr. Virts' counsel led to further confusion regarding the month and year of the certificate's issuance. 2 The district court was well within its discretion to determine that Mr. Craven's deposition testimony could not appropriately be used for impeachment purposes.
The second issue on appeal involves the testimony of appellant's expert witness, Dr. Wattleworth. In order for this Court to reverse the district court's exclusion of this testimony, appellant must show abuse of discretion on the part of the trial judge. Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185, 1187 (4th Cir. 1990). Again, appellant establishes no error.
The trial court recognized Dr. Wattleworth's expertise in accident reconstruction. Based on a study of the record, and on Mr. Bailey's testimony that he saw Mr. Virts' motorcycle in the passing lane five seconds prior to the accident, Dr. Wattleworth concluded that Mr. Bailey could have avoided the collision by braking within seven feet of Mr. Virts' motorcycle. The heart of Dr. Wattleworth's theory follows:
Basically all of the testimony from all of the parties here, it would indicate that Mr. Bailey had ample time to have seen Mr. Virts in the left-hand lane, to recognize that he was overtaking Mr. Virts, and to apply his brakes and slow down. Mr. Virts and the other vehicles were traveling about 45 miles an hour. Mr. Bailey was traveling about 55 miles an hour.
There is only a 10 mile an hour speed differential there. It would take him a very short distance to brake or bring his speed down to 45 miles an hour, at that point he would no longer be closing on Mr....
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