Wash v. Holland

• Decision Date: 16 January 1936
• Citation: 166 Va. 45
• Parties: ELMORE M. WASH, ADMINISTRATOR, ETC. v. A. J. HOLLAND.
• Court: Virginia Supreme Court

Page 45

166 Va. 45

ELMORE M. WASH, ADMINISTRATOR, ETC. v. A. J. HOLLAND.

Supreme Court of Virginia, Richmond.

January 16, 1936.^*

Present, Campbell, C.J., and Holt, Hudgins, Gregory and Eggleston, JJ.

1. AUTOMOBILES — Child Struck by Automobile While Crossing Highway — Instructions — Instruction Making Defendant Insurer of Child's Safety — Case at Bar. — In the instant case, an action to recover for the alleged wrongful death of a child who was struck by defendant's automobile while crossing the highway, the court refused to grant an instruction for plaintiff as follows: "The court instructs the jury that the operator of an automobile has no right to assume that a child will not attempt to cross the highway in view of or ahead of his automobile, and it is therefore the duty of the automobile driver, when he sees or should have seen, in the exercise or ordinary care, a child crossing or about to cross in front of or ahead of his automobile, to get his automobile under complete control so as to avoid injury as soon as he sees, or in the exercise of ordinary care, should have seen such child crossing or about to cross in front of or ahead of said automobile."

Held: That the instruction, in the form requested, was properly refused. It would have, in effect, made defendant an absolute insurer so far as the child was concerned. It should have been qualified so as to have told the jury that they should find for plaintiff if defendant saw, or in the exercise of ordinary care should have seen, the child "in time to have avoided her by the exercise of ordinary care."

2. NEGLIGENCE — "Error in Extremis" Doctrine — Self-Imposed Emergency. — The doctrine of "error in extremis" does not apply to a self-imposed emergency.

3. AUTOMOBILES — Appeal and Error — Objection to Instruction — Failure to State Grounds of Objection in Trial Court — Case at Bar. — In the instant case, an action to recover for the death of a child who was struck by defendant's automobile while crossing the highway, while the certificate of exception showed a general objection to the granting of a certain instruction for defendant, no ground of such objection was stated in the trial court. In fact, the written opinion of the trial judge stated that "No objection was urged when this instruction was given, the objection seems to have arisen after the trial, * * *."

Held: That Rule XXII precluded the consideration of the objection by the Supreme Court of Appeals.

4. AUTOMOBILES — Child Struck by Automobile While Crossing Highway — Instructions — "Error in Extremis" Doctrine — Case at Bar. — In the instant case, an action to recover for the death of a child who was struck by defendant's automobile while crossing the highway, the trial court granted an instruction for defendant as follows: "The court instructs the jury that if the defendant through no fault of his own was suddenly confronted by an emergency and was compelled to act instantly in an effort to avoid the accident, he was not guilty of negligence if he made such a choice as a person of ordinary prudence placed in such a position might have made, even though the defendant did not make the wisest choice; and whether he used reasonable care under all circumstances is a question for the jury." Plaintiff contended that defendant's own negligence, in not sooner discovering the presence of the child, created the emergency.

Held: No error. To sustain plaintiff's contention the Supreme Court of Appeals would have had to hold, as a matter of law, that the emergency was self-imposed by defendant through his own negligence, and this it could not do in the face of the jury's verdict in defendant's favor.

5. AUTOMOBILES — Child Struck by Automobile While Crossing Highway — Questions of Law and Fact — Negligence of Automobile Driver — Case at Bar. — In the instant case, an action to recover for the death of a child who was struck by defendant's automobile while crossing the highway, it was a question for the jury, and not for the Supreme Court of Appeals, to say whether defendant was guilty of negligence in not sooner seeing the child.

6. NEGLIGENCE — Children — Presumption That Child between Seven and Fourteen Is Incapable of Negligence. — A child between seven and fourteen years of age is favored by a rebuttable presumption that it cannot be guilty of negligence.

7. AUTOMOBILES — Child Struck by Automobile While Crossing Highway — Questions of Law and Fact — Contributory Negligence of Eight-Year-Old Child — Case at Bar. — In the instant case, an action to recover for the death of a child eight years and nine months old, who was struck and killed by defendant's automobile while running across the highway, the capacity of deceased for being guilty of contributory negligence was a question for the jury.

8. APPEAL AND ERROR — Affirmance — Verdict Not to Be Set Aside because Appellate Court Might Have Reached Different Conclusion. — A jury's verdict, approved by an able and unbiased trial judge should not be set aside in the Supreme Court of Appeals merely because, as an original proposition, that court might have reached a different conclusion. The Supreme Court of Appeals sits as an appellate court and not as a jury.

9. AUTOMOBILES — Children — Duty of Driver to Adults and Children Measured by Different Standards. — The duty and liability of a driver of an automobile to adults and children are measured by different standards. Ordinary care towards an adult under certain circumstances might be gross negligence towards a child under the same conditions.

10. AUTOMOBILES — Children — Driver Must Increase Exertion to Avoid Injuring Child. — The driver of a car must increase his exertion so as to avoid injuring a child whom he sees, or by the exercise of reasonable care should see, on or near the road.

11. APPEAL AND ERROR — Assignments of Error — Necessity for. — The Supreme Court of Appeals can consider only such errors as are properly saved in the record and presented to it by appropriate assignments of error.

Error to a judgment of the Circuit Court of Hanover county. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

T. A. Williams and L. C. O'Connor, for the plaintiff in error.

Sinnott & May, Virgil P. Randolph, Jr., and J. B. Browder, for the defendant in error.

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

Gladys M. Wash, eight years and nine months old, while running across a highway in Hanover county, was struck and killed by an automobile driven by A. J. Holland. This action was brought by her administrator to recover damages for her alleged wrongful death. The parties will be referred to as they appeared in the court below in which there was verdict and judgment for the defendant.

The evidence on behalf of the defendant, which has been accepted by the jury, is this:

Gladys Wash lived with her grandmother, Mrs. J. Y. Williams, on the eastern side of the Richmond-Washington highway, at Atlee, in Hanover county. The Williams residence is some distance back from the road. In front of it is a hedge running parallel to, and about thirty-three feet from, the eastern edge of the hard surfaced portion of the highway.

The road is straight for several hundred feet both north and south of the entrance to the Williams home. Should the driver of a northbound automobile look in that direction, he could plainly see a person standing or moving between the hedge and the eastern side of the highway.

Each morning, at about 8:30 o'clock, it was the custom of the little girl to cross the road and catch the school bus on the western side of the highway in front of her home. This she did by proceeding along a walkway leading from the residence, through an opening in the hedge, thence down a slight embankment, over a six foot dirt shoulder and across the pavement.

At about 5:30 A.M., on October 1, 1933, in company with two friends, the defendant left his home in Nansemond county, Virginia, in a Model A, 1928 Ford sedan, to attend a world series baseball game to be played at Washington, D.C., on that afternoon. Their route was through the city of Richmond and thence northwardly along the Richmond-Washington highway. They were proceeding at from forty to forty-three miles per hour as they approached the Williams home. The school bus was then about seventy-five or one hundred yards in the distance, and approaching from the opposite direction. Just in front of it, and proceeding in the same direction as the bus, was a loaded truck.

On the western side of the highway, opposite the Williams property, were two school children waiting for the bus. About five hundred yards south of the entrance to the Williams property, and on the western side of the highway, five other children were likewise awaiting the bus. The defendant saw, but paid no particular attention to these children as they were a safe distance from the road.

When the Holland car had almost reached the entrance to the Williams home, the defendant, for the first time, saw the little girl. She was on the eastern edge of the concrete about twelve or fifteen feet ahead of his car, was running diagonally toward the western side of the road with her back to the automobile, and entirely unmindful of its approach. The defendant was then driving about two feet from the right hand edge of the pavement. Upon seeing the child on the eastern edge of the concrete, Holland cut his car sharply to the left in the effort to avoid striking her. After hesitating momentarily in the center of the road, as if to retrace her steps, the child continued on across the pavement into the path of the car and was struck and killed instantly.

The gist of the plaintiff's case is that the defendant, by the exercise of ordinary care, should have seen the child before she reached the edge of the road, since she was within the range of his vision from the time she left the hedge.

The defense is two-fold: (1) The failure of the driver in not sooner...