Voight v. Reber
| Decision Date | 12 January 1948 |
| Citation | 46 S.E.2d 15,187 Va. 157 |
| Parties | VOIGHT. v. REBER. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Sussex County; J. J. Temple, Judge.
Action by Beulah M. Reber, administratrix of the estate of Frederick A. Reber, deceased, against Virginia J. Voight, administratrix of the estate of C. M. Joyner, deceased, to recover for the death of Frederick A. Reber who was killed while at the rear of his parked truck when an automobile driven by C. M. Joyner ran into the rear of the truck, wherein the defendant filed a counterclaim to recover for the death of C. M. Joyner. To review judgment in favor of the plaintiff, the defendant brings error.
Judgment affirmed.
Before GREGORY, BUCHANAN, STAPLES and MILLER, JJ.
Charles B. Godwin, Jr., Mills E. Godwin, Jr. and Marshall L. Bowdon, all of Suffolk, for plaintiff in error.
Rixey and Rixey, of Norfolk, and Robert W. Arnold, Jr., of Waverly, for defendant in error.
Frederick A. Reber was instantly killed when a truck which he had been driving, and which was stopped on the road, was struck from behind by a car driven by C. M. Joyner, who was fatally injured in the collision and died a few hours later without regaining consciousness.
The administratrix of Reber sued the administratrix of Joyner for negligently causing the death of Reber.
The administratrix of Joyner filed a counterclaim against the administratrix of Reber for negligently causing the death of Joyner.
Reber was killed while at the rear of his truck, apparently fixing a tire. The case for the plaintiff was that the lights on the truck were burning; that the required flares had been set out by Reber and were burning; and that the cause of the accident was the negligence of Joyner in not keeping a proper lookout or not having his car under, proper control so as to avoid running into the truck.
The defense asserted, and the basis of defendant's counterclaim, was that Reber was negligent in stopping his truck on the highway, and in failing to place flares about it as required by law. Code 1942, Michie, secs. 2154(133), (133a).
A trial by jury resulted in a verdict for $15,000 in favor of the administratrix of Reber, upon which the judgment was entered to which this writ of error was allowed. The jury found against the administratrix of Joyner on her crossclaim.
The accident happened about 6:30 p. m., December 6, 1945, after dark, on State highway No. 460, about three miles west of Waverly in Sussex county. Route 460 at that point is a four-lane highway which runs east from Petersburg through Waverly toward Norfolk.
Earlier in the afternoon--between 3:30 and 4 o'clock--Reber had left Norfolk over Route 460 westbound for Detroit, driving a large truck loaded with furniture. The truck was the tractor-trailer type with dual wheels at the rear of the trailer. At the time of the accident the truck was standing, or parked, headed east toward Norfolk, in the opposite direction from its original des tination, and near to and parallel with its right-hand edge of the concrete in the southern or eastbound traffic lane. Reber was alone in the truck and there is no explanation of his changed course, other than an inference that it was due to mechanical trouble.
The road at the place of accident is straight and practically level. There is a slight rise in it some distance back and from that point it was slightly downgrade to the place of collision, but for a distance of four to five hundred yards back of the truck all of it could have been seen by the driver of an approaching vehicle. A witness for the plaintiff, driving east from Petersburg, arrived at the scene of the accident about an hour after it happened, and testified that he saw the truck at least a quarter of a mile before he got to it.
Mr. Joyner left Petersburg about 5:30 o'clock that evening, driving a four-door Chevrolet automobile, going east toward Norfolk to his home in Zuni. At his right on the front seat was Mrs. Joyner, and on the rear seat were Mrs. Carr and Mrs. Lanier. The night was misty and foggy, and visibility was poor, although a witness for plaintiff testified that at a speed of 50 miles an hour he could see fairly well. It had been raining but was not at the time of the collision. Mrs. Joyner was badly hurt in the wreck. Mrs. Lanier fainted when the crash came. They testified that Mr. Joyner was driving around 25 miles an hour; that they were looking ahead but did not see the truck in the road, or any lights; that they met a car with blinding lights and then the crash came. Mrs. Lanier said,
There was abundant and convincing evidence that there were lights burning on the truck and flares burning in the highway ample to give warning to approaching travelers exercising reasonable care.
A State trooper, who came from Petersburg, reached the scene a little more than thirty minutes after the accident, and testified that he saw this truck parked on theroad four or five hundred yards before he got to it; that lights were burning on the back of the truck and parking lights on the front; that three flares were burning, one at the left rear corner of the truck, another was 20 yards back, in the ditch, and not burning (there was evidence that this one had been run over by an automobile, presumably Joyner's); and a third burning 38 yards back of the truck. In addition, an emergency light had been connected from the front to the rear of the truck, and was broken.
In all, thirteen witnesses for the plaintiff testified that lights were burning on the truck and flares were burning on the highway in or along the truck's lane of travel, front and rear. These included a witness who testified he passed the truck a short while before the accident and saw the driver putting out flares, at least three of which were then lighted. They included, also, witnesses who testified they came from the same direction as the Joyner car, arrived at the scene of accident from immediately after the accident to an hour later, and saw the lights on the truck and the flares in the road from distances varying from a quarter of a mile to 100 yards. Even a witness for the defendant testified he saw the truck lights far enough back "to come with necessary caution so I would not run into it." "It may have been 100 or 150 yards."
The estimate of the number of lights burning on the rear of the truck ranged up to eight and the number of flares up to five, including the one that had been run over. The witnesses differed among themselves as to the number of flares, as would be expected because it was a terrible wreck and their natural and commendable concern was first for the dead and suffering.
The Joyner car struck the Reber truck head on, squarely from behind, with no evidence that its brakes were applied, or that it turned at all from its straight course. It bounced back about eight feet from the rear of the truck, and in that space was the body of Reber lying under the back of the truck on the right-hand side, his brains spattered on the rear of the truck. A jack handle was in his hand with the jack attached to it, or lying beside it. An extra tire was on the ground at the rear of the truck on the right. The lugs on the right rear wheel had not been tightened. The motor of the truck was running.
While there was a practically level shoulder on the truck's side of the road wide enough to accommodate it, there was evidence that it was muddy there that night, and dangerous to drive a loaded truck on it. A witness for the defendant, who drove the truck away from the place of accident, testified that it was a very heavy truck and he would not want to put it on that shoulder. It would have been difficult to use a jack on a shoulder of that kind.
In addition to the three occupants of the car, another witness for the defendant, who arrived immediately after the accident, testified there were no flares burning, but there were some in the road which were damaged and not burning, and he could not say whether lights were burning on the rear of the truck or not. He was bothered by the lights of a witness for plaintiff driving just behind him, who testified that he saw the lights burning on the truck and flares burning in the road. One other witness for defendant, who arrived sometime later, testified that the only flare he remembered seeing was one in front of the truck, but that he saw two red lights on the back of the truck, as if in the air and slowly moving away when he first saw them. This was the witness who testified, as referred to above, that he saw these lights far enough back to proceed with necessary caution.
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...the evidence was sufficient to establish negligence on the part of defendant. It was his duty to keep a proper lookout, Voight v. Reber, 187 Va. 157, 46 S.E.2d 15, and the jury could have concluded that he was not doing so from the fact that he did not see the plaintiff until he was right o......
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