Von Roy v. Whitescarver

• Decision Date: 10 October 1955
• Docket Number: No. 4421,4421
• Citation: 89 S.E.2d 346,197 Va. 384
• Court: Virginia Supreme Court
• Parties: FRED VON ROY, JR. v. FURMAN WHITESCARVER, JOHN P. CROWE AND FLORA CROWE. Record

Page 346

89 S.E.2d 346

197 Va. 384

FRED VON ROY, JR. v. FURMAN WHITESCARVER, JOHN P. CROWE AND FLORA CROWE.

Record No. 4421.

Supreme Court of Appeals of Virginia

October 10, 1955.

William W. Berry, for the plaintiff in error.

Oliver & Padgett and Albert O. Burks, for the defendants in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

Furman Whitescarver instituted this proceeding against Fred Von Roy, Jr., John P. Crowe and Flora Crowe to recover damages to his automobile alleged to have been sustained by the negligent operation of two other automobiles, driven respectively by Von Roy and Flora Crowe. Each of the defendants denied liability. The jury trying the case returned a verdict in favor of Von Roy but against John P. Crowe and Flora Crowe for $1721.00. Mr. and Mrs. Crowe moved the trial court to set aside the verdict as contrary to the law and the evidence. Whereupon Whitescarver moved to set aside the verdict in favor of Von Roy and to enter final judgment for plaintiff against all of the defendants. The trial court overruled the motion made by the defendants, Crowe, sustained the motion of Whitescarver, and entered final judgment in favor of the plaintiff against all of the defendants for the amount of the damages found by the jury. Code of Virginia, § 8-352, Norfolk etc., R. Co. v. Parker, 152 Va. 484, 147 S.E. 461; Richmond Coca-Cola Bottling Works v. Andrews, 173 Va. 240, 3 S.E. (2d) 419; Schools v. Walker, 187 Va. 619, 47 S.E. (2d) 418.

The matter is now before us on a writ of error granted Von Roy to review the action of the trial court in setting aside the verdict in his favor and rendering judgment against him. The defendants, Crowe, did not appeal from the judgment against them. That judgment has become final, and the negligence of those two defendants has been established and is not now in issue. The only questions presented to us are whether Von Roy was guilty of negligence as a matter of law, and, if so, whether such negligence was a proximate cause of the accident.

In view of the verdict of the jury in favor of Von Roy, the evidence will be set out as is most favorable to him.

The accident occurred about two o'clock p.m., on November 25, 1952, on a clear, dry day, on United States Highway Route No. 460, at its junction with a country road known as the 'Old Turnpike' in Bedford County. Route No. 460 is a paved two-lane eastwest highway, the traffic lanes being marked by a solid white line to the left of the westbound traffic lane and a broken white line to the left of the eastbound lane. 'Old Turnpike' is a gravel road leading diagonally off Route No. 460 to the southwest forming a connecting link between Route No. 460 and a secondary road, No. 67. West of the intersection of these two roads is the crest of a hill or knoll which Route No. 460 gradually ascends for 200 yards or more. A short distance east of the intersection Route No. 460 curves slightly to the north. A State Trooper said that opposite the intersection the westbound driver of an automobile could see an approaching car 'well over 250 feet ahead.' West of the crest of the hill the road descends to what is termed a 'dip,' which provides a similar limitation of view to eastbound drivers.

The facts and circumstances surrounding the accident are shown in the testimony of four eye-witnesses and by several photographic exhibits. There is little or no conflict in the material evidence.

On the day and at the time in question, Furman Whitescarver, Jr., accompanied by John Ray Jennings and another person, was driving his father's 1951 Oldsmobile sedan in a westerly direction on Route No. 460, immediately behind Fred Von Roy, who was operating a 1929 model Ford coupe. Mrs. Flora Crowe, accompanied by her husband, was driving a 1952 Nash automobile, owned by her husband, in an easterly direction on Route No. 460.

Furman Whitescarver, Jr., testified that he was proceeding about 30 yards behind Von Roy at a speed of about 50 miles per hour; that he saw Von Roy give a hand signal for a lfet turn, and at the same time saw the Crowe car coming over the hill, and he slowed down; that Von Roy traveled about 30 feet with his hand out and when he got opposite the entrance to the 'Old Turnpike,' he 'suddenly cut across the highway' to the left; that the Crowe car was 'around 20 yards away' in its proper lane of travel, in front of and in full view of himself and Von Roy when the latter made his left turn; that he saw an accident was going to happen, drove his car at from 2 to 5 miles per hour to the graveled right-hand shoulder of the road, and was practically at a stop when the left front of the Crowe car struck the left front of his car. He admitted, on cross-examination, that he had formerly said that he had not seen the Crowe automobile until Von Roy was opposite the entrance of 'Old Turnpike.' He, however, repeated his statement that he did see the Crowe car while Von Roy was making a signal for a left-hand turn, and before the turn was made.

John Ray Jennings, seated on the front seat of the Whitescarver car, testified that he saw Von Roy's car 'slowing down and kinda to the middle of the road and when we got closer he gave a signal. ' Jennings said he did not see any other car at that time, 'but when we got on up there he (Von Roy) started to make a turn there over the hill came the Nash. ' He added Von Roy's car was not then 'in the left lane;' he had 'just barely started' into that lane; and 'You could not see the side of his car. ' He estimated the speed of the Crowe car as 45 of 50 miles an hour. He said that if Von Roy had stopped his car 'straddle of the line,' Mrs. Crowe might have had room to pass by going 'on the shoulder a little bit, but not much. There was room to squeeze by but it would have been dangerous to have done so.'

Von Roy, a 69-year-old retired Civil Engineer, testified that he ascended the hill at a speed of between 35 to 45 miles an hour, keeping a lookout for other traffic; that he observed two automobiles behind him and remembered that in the past he had 'two particular cars' try to pass him. Intending to turn left into 'Old Turnpike,' he said he gave a signal at approximately 100 feet before he got to the place where he made the turn, and 'kept it out until just before I started to turn, and I looked back to see if the car behind had caught my signal and then went on up to turn. As I started my turn I heard brakes squeaking and looked up and saw the Crowe car coming, and if I stopped there she would have run into me, it could not have avoided hitting me, so I kept on into the drive and as I just about cleared the road I heard the crash. ' Upon cross-examination, he stated that before he looked backward, he looked ahead and saw no traffic in front of him, and that the first time he saw the Crowe car was after its collision with the Whitescarver car. The Ford coupe was then about 2 or 3 feet off the paved surface of Highway No. 460. He said he made a 45-degree turn, and that the 'upper edge' of 'Old Turnpike' was 200 feet from the point where tire marks of Mrs. Crowe's car first appeared on the road.

The further testimony of Von Roy as to where he was looking both before and when he 'started to turn' is clear, revealing and convincing. We quote his exact words in answer to questions of counsel:

'Q. Do you feel you would be in a better position to have seen west than somebody back down here?

'A. I should have. I was looking to see if he had seen my signal, and just then the car must have come over the hill.

'Q. I am confident you would not have made the turn if you knew the car was coming down the road right at you?

'A. No.

'Q. If you had looked west do you think you could have seen it?

'A. I ought to have seen it as soon as they did, but it took several seconds for it to come in sight.

'Q. You think you were looking back east at the time?

'A. I must have been.

* * *

'Q. In which direction did you look first?

'A. I looked ahead first.

'Q. And then you looked back. Did you look ahead any more or did you keep your attention on the car that was following you?

'A. While I was looking back I started making my turn.

'Q. I mean as you started making your turn did you look ahead, any more?

'A. Not until I heard the screeching of the brakes.

'Q. You were looking back?

'A. I was looking back.

* * *

'Q. As I understand your testimony, you gave a left turn signal and you were concerned over the Whitescarver car which was travelling faster then yours?

'A. That had something to do with it, but in the past I had had two particular cars to try to pass me -- I was thinking about the car behind me.

'Q. And your attention was on that car as you made your turn?

'A. Yes.

'Q. And you did not know anything about the Crowe car until you heard the brakes screeching?

'A. Yes, that is right.

'Q. And didn't see the Crowe car until after the accident?

'A. Yes.

* * *

'Q. Did you take a long look behind you or just a glance?

'A. I was looking back from the time -- I don't know how long, probably a second or two. I was looking back when I started my turn and I was touching the white line or may have been across the white line.'

All three of the foregoing witnesses agreed that Von Roy was in a better position than any one of them to see the oncoming Crowe car, both because he was at a higher position on the grade and was driving a car which raised him higher above the pavement. It was not denied that if Von Roy had looked the Crowe car was in full view of him when he started to turn left in front of it. The only explanation he gave for his failure to see the car was that he was looking back to the rear, that is, to the east, at the time it came within view from the west.

Mrs. Crowe said that keeping a lookout ahead, she approached the point of the accident at an estimated speed of 55 miles an hour. She first saw Von Roy's automobile as she got over the crest of the...