Waynick v. Walrond

• Decision Date: 12 September 1930
• Citation: 155 Va. 400
• Court: Virginia Supreme Court
• Parties: J. H. WAYNICK v. LAKE WALROND.

Page 400

155 Va. 400

J. H. WAYNICK v. LAKE WALROND.

Supreme Court of Virginia, Staunton.

September 12, 1930.

Absent, Holt, Hudgins and Gregory, JJ.

1. AUTOMOBILES — Collision between Motor-cyclist and Truck Parked on Wrong Side of Road — Contributory Negligence of Plaintiff Motor-cyclist — Case at Bar. — Plaintiff was riding a motor-cycle after dark when he collided with a truck owned by defendant. The truck was illegally parked on the wrong side of the road, with its tail-board extended, at an angle of forty-five degrees, or less, with the edge of the road. By the weight of the evidence the end of the truck extended half way across the hard surface roadway. Plaintiff was traveling at a speed at from twenty to twenty-five miles an hour on the right-hand side of the road, when he observed approaching him another car. At the same time he also observed the dimmed lights of the truck on his right but off of the highway. The headlights of the approaching car dimmed his vision and he did not see the dangerous position of the truck on the wrong side of the hard surface of the road until he was within fifteen feet of it. When he attempted to swerve to the left, he struck the edge of the truck and was badly injured.

Held: That the proximate cause of the accident was the gross negligence of defendant in parking his truck on a dark night on the wrong side of the road which had a very dense traffic, and there was nothing in the evidence from which the jury could fairly have inferred that plaintiff was guilty of contributory negligence.

2. AUTOMOBILES — Collision between Motor-cyclist and Truck Parked on Wrong Side of Road — Contributory Negligence of Plaintiff Motorcyclist — Evidence of Plaintiff not Incredible — Case at Bar. — In the instant case defendant had parked his truck on the wrong side of the road, the headlights of the truck being off of the road but its body extending half way across the hard surface part of the road, at an angle of about forty-five degrees with the edge of the road. The truck had no tail light but its headlights were burning. Defendant contended that plaintiff was guilty of contributory negligence in not stopping his motor-cycle before striking the truck when he was admittedly apprised by the position and angle of its headlights of its presence on the road just where he was due to meet another automobile which was approaching. Plaintiff testified that owing to the failure to see any red light in his pathway, the white lights of the truck facing him, outside of the highway, misled him into supposing that no automobile in that position would have the rear part of its body extending half way over the roadway, and that his vision was dimmed by the approaching automobile which seemed to him to be the only source of danger.

Held: That these statements of plaintiff were not inherently incredible, indicated nothing physically impossible, and his conclusions, from the apparent facts, were reasonable.

3. AUTOMOBILES — Contributory Negligence — Burden of Proof — Questions of Law and Fact — Case at Bar. — In the instant case, an action by a motor-cyclist against the owner of a truck, which was parked on the wrong side of the road, the substantive question was whether or not plaintiff's recovery could be defeated because of his contributory negligence; this because the original negligence of defendant was apparent and conceded. The burden of proof rested upon defendant to show this contributory negligence by a preponderance of the evidence. So far from doing so, the most favorable view which could possibly be taken for the defendant was that it was a jury question. The precise question was fairly submitted to the jury by the instructions.

Held: That the verdict of the jury in favor of the plaintiff was conclusive. Had they found the plaintiff guilty of contributory negligence, their verdict would have been plainly against the weight of the evidence.

4. NEGLIGENCE — Comparative Negligence. — Except in some occasional instances under statutes so providing, the doctrine of comparative negligence has never obtained in this jurisdiction.

5. AUTOMOBILES — Contributory Negligence — Wilful and Wanton Negligence — Instructions — Harmless Error — Case at Bar. — In the instant case, arising out of a collision between a truck of defendant parked on the wrong side of the road and plaintiff, a motor-cyclist, the court instructed the jury in effect that the bare contributory negligence of the plaintiff could not defeat his recovery if the defendant had been guilty of wanton negligence and the plaintiff had not.

Held: Error, but not sufficient to justify a reversal of a judgment for plaintiff, as had the court refused the instruction, still there could have been but one proper verdict, and that a verdict in favor of plaintiff.

6. APPEAL AND ERROR — Reversal — Substantial Error. — Appellate courts sit to correct substantial rather than fanciful error.

Error to a judgment of the Court of Law and Chancery of the city of Roanoke, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Woods, Chitwood, Coxe & Rogers, for the plaintiff in error.

Dillard, Moomaw & Dillard, for the defendant in error.

PRENTIS, C.J., delivered the opinion of the court.

J. H. Waynick, hereafter called the defendant, complains of a judgment in favor of Lake Walrond, an infant who sues by J. L. Walrond, his father and next friend, hereafter called the plaintiff.

1, 2 The plaintiff, nineteen years old at the time of the trial, was seriously injured under these circumstances: He was riding a motor-cycle, after dark, traveling north on the Hollins road, about a mile from Roanoke, when his machine collided with a truck owned by the defendant, a furniture dealer in Roanoke. The truck, headed south towards Roanoke, was illegally parked on the wrong side of the road, with its tail-board extended, at an angle of forty-five degrees, or less, with the edge of the road. The rear wheel was on the road, and by the weight of the evidence the end of the truck extended half way across the fifteen and one-half foot hard surface roadway. The truck, driven by the servant of the defendant, was at the time occupied by another employee named Jones and the defendant. They had stopped at Shockley's store to make an inquiry as to the residence of one of the defendant's customers for whom they had goods. The truck remained in this position, so obviously improper and dangerous to others, for a period of time estimated by no one at less than five minutes. By one witness at least the period was estimated to be fifteen minutes. It was so dark at the point that Jones, the defendant's helper, lent his flashlight to another boy who was at the time having his motor-cycle filled with gasoline from a pump located in front of the store. The headlights of the truck were dimmed, were facing south, and were several feet away from the edge of the hard surface roadway and not shining on it. The plaintiff, with his motor-cycle properly equipped; traveling at a speed estimated by several disinterested witnesses to be from twenty to twenty-five miles an hour; traveling on the right-hand side of the road going north, observed approaching him from the opposite direction the bright lights of a Chevrolet car, traveling probably at the same rate of speed. He also observed at about the same time the dimmed lights of the truck on his right but off of the highway, and quite naturally thinking that this was no dangerous obstruction on the roadway gave his attention to the approaching automobile. His vision was dimmed by the headlights of that car, and he testified that he was unable to see and did not know of the dangerous position of the truck across the pathway on the wrong side of the hard surface of the road until he was within fifteen feet of it. When he attempted to swerve to the left so as to avoid a collision, he struck the edge of the truck, which knocked his hand from the handle-bar of the motor-cycle, causing him to lose control of it and throwing him towards the approaching automobile. He then struck the side of the automobile, was thrown in a ditch by the road-side and very seriously and permanently injured.

There are other details but there is no substantial contradiction of the facts we have stated, unless perhaps the statements of the driver of the truck and Jones, the helper, that they estimated the speed of the motor-cycle at forty-five miles per hour. It is, however, clear that they were paying scant attention to it.

The learned counsel for the defendant inserted this frank caveat in their very able brief: "Counsel for the defendant realize that in the foregoing pages they have not entirely succeeded in making a judicial statement of the facts of the case. The broad issues submitted to the jury under the very general instructions of the court make it difficult to say just what facts were determined by the verdict. In view of the plaintiff's own admissions, by which he is necessarily bound, only one fact can with certainty be said to have been definitely established, namely, that the jury felt a great deal of sympathy for the crippled young plaintiff."

The entire argument for the defendant on the facts is based upon the contention that the testimony of the plaintiff himself shows that he was guilty of contributory negligence, "in not stopping his motor-cycle before striking the truck when he was admittedly apprised by the position and angle of its headlights of its presence on the road just where he was due to meet the Chevrolet."

The plaintiff, however, testified repeatedly that the reason he did not stop or reduce his speed was because he felt confident that there was no obstruction on his, the right, side of the highway between him and the approaching Chevrolet. He justifies this by claiming that the failure to see any red light in his pathway and on his side of the road...