Whittaker v. Van Fossan

• Decision Date: 14 December 1961
• Docket Number: No. 8427.,8427.
• Citation: 297 F.2d 245
• Parties: Pearl S. WHITTAKER, Administratrix of The Estate of Vance E. Whittaker, Deceased, Appellant, v. Mary E. VAN FOSSAN, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

297 F.2d 245 (1961)

Pearl S. WHITTAKER, Administratrix of The Estate of Vance E. Whittaker, Deceased, Appellant, v. Mary E. VAN FOSSAN, Appellee.

No. 8427.

United States Court of Appeals Fourth Circuit.

Argued October 16, 1961.

Decided December 14, 1961.

Thomas V. Monahan, Winchester, Va. (Joseph A. Massie, Jr., George G. Snarr, Jr., and Massie, Snarr & Monahan, Winchester, Va., on brief), for appellant.

J. Lynn Lucas, Luray, Va. (W. W. Wharton and Wharton, Aldhizer & Weaver, Harrisonburg, Va., on brief), for appellee.

Before BOREMAN, BRYAN and BELL, Circuit Judges.

BRYAN, Circuit Judge.

An ambulance driven by Vance E. Whittaker and a Cadillac car operated by Mary E. Van Fossan collided on a public highway near Winchester, Virginia, killing him and injuring her. His administratrix began the action now on review to recover damages of Mary E. Van Fossan for his death. The defendant counterclaimed for her injuries and consequent expenses. No recovery was allowed either party by the jury.

The administratrix appeals, asking for a retrial limited to damages, or failing that, an entirely new trial. She lays error to the District Court in admitting certain opinion evidence on the speed of the ambulance, and in declining to charge upon last clear chance in respect to the Cadillac driver and upon sudden emergency as applicable to the ambulancier. These assignments we find to be well taken.

The underlying facts are these. After dark in the evening of December 17, 1958 Mary Van Fossan, driving her Cadillac south on U. S. Highway 522, was looking for a motel on the east side of the road, that is, to her left. Missing the north entrance, she undertook to go into its south driveway. To do so, of course, necessitated her crossing the northbound lane.

Meanwhile, an ambulance, owned by the Winchester Volunteer Rescue Squad and driven by Vance Whittaker, was answering an emergency call. Headed north on highway 522, it was rapidly approaching the motel area from the south. Lights on the two vehicles were adequate and were adequately operating. The area was sufficiently built up to be described as a village, with incidental activity of people and cars. Whittaker was familiar with the locale. A speed limit of 45 m. p. h. was posted, but properly equipped and covered by the requisite liability insurance, the ambulance was permitted by law to exceed this limit if its speed did not become unreasonable in the circumstances. 1950 Va.Code 46.1-199, as amended.

The weather was clear, the road — two lanes — level and straight; the asphalt surface was dry, and had a width of 21 feet abutted by shoulders of 6 to 8 feet. Additionally, the visibility between the closing vehicles was unobstructed for at least 1000 feet, the Cadillac's turning blinkers were in action, the ambulance's siren and warning lights giving alarm, and there was no other impeding traffic. Yet the two collided. The front of the ambulance plowed into the middle right side of the Cadillac when the latter — heading into the motel drive — was half on and half off the highway pavement. Brake marks, 68 feet in length and leading to the collision point, were left in the northbound lane by the ambulance. It came to a stop 31 feet beyond; the Cadillac was displaced 8 feet north of the point of impact.

The administratrix's first exception is to the trial court's admission of the testimony of an "expert" giving an opinion upon the speed of the ambulance which he deduced from the brake marks, the extent of the damage to the vehicles and the distance each vehicle moved after collision. His conclusions were premised in part on a calculation under Virginia's statutory tables, 1950 Va.Code 46.1-195, as amended. The tables give the "speed and stopping distances" to be noticed by the courts, derived from "experiments made with motor vehicles, unloaded except for the driver, equipped with four-wheel brakes, in good condition, on dry, hard, approximately level stretches of highway free from loose material". 1950 Va.Code, as amended, supra at 46.1-195 (b).

Witness' process was to reverse the reading of the table and compute the speed from the length of the marks, i. e. a total of 99 feet stopping distance indicates approximately 43.5 m. p. h. For this he is not assailed. The objection is directed at the witness' enlargement on this answer in adding, "Of course, we know the speed was much greater than that" and "perhaps as high as seventy". The increased reckoning was his own figure. His reasoning was that the tables contemplate simply a stop at the termination of the marks without impediment; but the arrest of the ambulance did...