Walrod v. Matthews

• Decision Date: 01 December 1969
• Citation: 210 Va. 382,171 S.E.2d 180
• Court: Virginia Supreme Court
• Parties: John Hamilton WALROD v. Ronnie D. MATTHEWS.

Page 180

171 S.E.2d 180

210 Va. 382

John Hamilton WALROD v. Ronnie D. MATTHEWS.

Supreme Court of Appeals of Virginia.

Dec. 1, 1969.

George E. Allen, James A. Eichner, Richmond (Allen, Allen, Allen & Allen, Richmond, on brief), for plaintiff in error.

J. Segar Gravatt, Blackstone, M. Wallace Moncure, Jr., Richmond (Moncure & Cabell, Richmond, on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

COCHRAN, Justice.

John Hamilton Walrod brought an action against American Engineers and Ronnie D. Matthews for personal injuries incurred when an automobile operated by Walrod was struck by a station wagon owned by American Engineers and operated by Matthews.

At the conclusion of plaintiff's evidence a motion to strike the evidence as to both defendants was sustained as to American Engineers and overruled as to Matthews. At the conclusion of defendant's evidence the motion to strike the evidence was renewed by Matthews and again overruled. On June 30, 1966, the jury returned a verdict in favor of Walrod against Matthews in the sum of $30,000. Counsel for Matthews moved the court to set aside the verdict, and on November 10, 1966, the trial court entered an order setting aside the verdict and granting a new trial on the ground that the jury had been misdirected.

The new trial was held on January 23, 1968 and resulted in a verdict for defendant. Plaintiff's motions to set the verdict aside and grant a new trial and to reinstate the original verdict on June 30, 1966 were overruled by order entered March 12, 1968. We granted plaintiff a writ of error. Defendant has assigned as cross-error the actions of the trial court in admitting the opinion testimony of the expert witness, George Hunt, and in overruling defendant's motion to set aside the first verdict and enter judgment for defendant.

This accident occurred on July 24, 1964 at about 1:30 A.M. on U.S. Route 460 in Nottoway County approximately seventenths of a mile west of the corporate limits of the Town of Crewe. A 1957 Ford sedan, driven by Walrod, was proceeding west in the westbound lane of traffic on Route 460, a two lane highway marked with a white center line. A 1958 Plymouth station wagon, driven by Matthews, was traveling east on the highway. The accident occurred when the station wagon crossed the center line of the highway and collided with the sedan in the westbound lane.

A consulting engineer, George Hunt, was called as an expert witness by plaintiff for the purpose of proving that the accident resulted from a defective steering mechanism on the station wagon which in the exercise of ordinary care should have been known to Matthews. Indeed, it is upon Hunt's testimony that plaintiff's case stands or falls.

Hunt testified in detail that the mechanical failure was the separation of a ball and socket joint causing the lower right front control arm to fall, thereby rendering the right front wheel uncontrolable. In his opinion the socket had previously been split by a shock or blow and thereafter widened until the ball slipped out of the socket and the control arm fell down. When asked to explain how the station wagon was caused to veer to the left rather than to its right he answered as follows:

'One would expect when this right control arm fell on the road and started dragging on the road, providing the driver did not do anything, it would tend to go off the road to the right. But the skid marks, and the fact that he did go off to the left, is ample evidence in my opinion that he applied the brakes forcibly, and not having any brakes on this wheel at all, because this wheel was just dangling by the upper control arm and no weight of the vehicle was on that wheel, then by applying the brakes hard to the left wheel, the car would veer to the left abruptly and sharply, as it did.'

After the jury verdict was returned for plaintiff the trial judge concluded that in view of Hunt's testimony explaining why the station wagon suddenly veered to its left he had erred in not giving a 'sudden emergency' instruction tendered by defendant. Accordingly, the verdict was set aside and a new trial granted.

We are called upon to determine whether it was error to set aside the verdict for failure to give a 'sudden emergency' instruction at the first trial, and if so, whether there was evidence to support the verdict.

It is clear from the record that plaintiff's case was based entirely on the theory that Matthews was negligent in operating the station wagon on the highway when there was a defective condition in the steering apparatus which was known or in the exercise of ordinary care should have been known to him. It is equally clear that defendant's case was based entirely on the theory that Matthews neither knew nor had any reason to know that there was any defect in the steering mechanism. The case was tried on this narrow issue and the jury was instructed thereon as follows:

'INSTRUCTION NO. 1

'You are instructed that if you do believe from a preponderance of the evidence that the defendant did know or in the exercise of ordinary care should have known that the said steering mechanism was defective and thereafter operated said motor vehicle upon the highways, you should find your verdict for the plaintiff and assess his damages in accordance with the Court's instruction on damages.'

'INSTRUCTION NO. 8

'The Court instructs the jury that the evidence conclusively establishes that the collision in this case occurred upon the plaintiff's right side of the highway.

'The Court further instructs the jury that the evidence further establishes that the defendant's motor vehicle moved from its own right side of the highway across the center and unto the left side of the highway because of the separation of a ball joint of the steering mechanism of the defendant's motor vehicle.

'And you are further instructed that unless you believe from a preponderance of the evidence that the defendant knew or in the exercise of ordinary care should have known that the steering mechanism was defective and thereafter operated said motor vehicle upon the highway, you should find your verdict for the defendant.'

The court refused a properly worded 'sudden emergency' instruction tendered on behalf of defendant.

Defendant was only entitled to have the jury fairly instructed as to his theory of this case. In Poole v. Kelley, 162 Va. 279, 173 S.E. 537 (1934), plaintiff's theory was that the accident was caused by reckless driving and excessive speed on the part of defendant. Defendant's theory was that he lost control of his car due to some mechanical defect in the accelerator pedal. A 'sudden emergency' instruction was refused since the court had given an instruction that the jury should find for defendant if they thought it 'just as likely that the injury and death * * * was caused by some defect in, or the getting out of order of, the steering gear, accelerator or some other part of the car'. This court approved the ruling of the trial court.

Here, Walrod did not undertake to prove any negligence on the part of Matthews in operating the car into the wrong lane of travel after the control arm fell down and dragged on the highway, nor did he offer any instruction to this effect. Thus, we do not have a sudden emergency question because defendant is not required to explain his actions after the steering control failed. Furthermore, any emergency arising afterwards would have been caused by defendant's negligence in going upon the highway and the emergency doctrine could not be invoked by him. Bloxom v. McCoy, 178 Va. 343, 17 S.E.2d 401 (1941); Southern Passenger Motor Lines v. Burks, 187 Va. 53, 46 S.E.2d 26 (1948); Terry v. Fagan, 209 Va. 642, 166 S.E.2d 254 (1969).

We conclude that the jury was adequately and properly instructed in accordance with the theories of plaintiff and defendant and that no 'sudden emergency' instruction was justified. It was therefore error for the trial court to set aside the first verdict and grant a new trial on the ground that such an instruction should have been given.

We now consider the admissibility of evidence and its sufficiency.

The expert witness Hunt, first employed by defendant but whose findings were made available to both sides, was plaintiff's chief witness. His testimony was based upon his study of the broken parts of the steering apparatus and his observation of the condition of the underside of the station wagon. In his opinion the accident was caused in this manner:

'The condition of this socket, and the fact that it did part, and the abrasion on the bottom of it, which shows it came from contact of the vehicle in motion, is without question as a result of some prior injury to this socket joint, which split it and weakened it, so that over a period of time--and I cannot evaluate this period of time--it may be in a day or two, or it may be in a week or two, or it may be even longer than that, but at some time, that socket was damaged because the control arm presumably struck some obstacle, and with sufficient force to crack this and to start this whole chain of events.

'And, subsequently, when he was going down the road, just a moment or two before the accident, these things came apart and this was definitely the cause of the accident.'

When asked whether or not the split in the socket would have had any effect upon the operation of the vehicle he gave his opinion that the steering would have been affected. He continued:

'Any force of sufficient magnitude to rupture that socket would surely displace the control arm from its proper position, and the result of this would be that the car would have a tendency--and now, please don't ask me to evaluate this tendency because I don't know whether it would be slight or severe--but there should be some tendency that the car would pull to the left or right; in this case to the right. This would be the most probable result...