Wolfe v. Lockhart
| Decision Date | 30 November 1953 |
| Citation | 78 S.E.2d 654,195 Va. 479 |
| Parties | D. O. WOLFE, ADMINISTRATOR OF MARVIN WAYNE TINGLER, DECEASED v. RALPH E. LOCKHART AND WILLIAM L. GEARHART |
| Court | Virginia Supreme Court |
R. B. Stephenson and C. S. Minter, for the plaintiff in error.
William Goode, Hale Collins and John T. Delaney, for the defendants in error.
Present, Eggleston, Spratley, Buchanan, Miller and Smith, JJ.
Marvin Wayne Tingler, fourteen years of age, was killed on December 30, 1951, at 4:20 a.m., when an automobile that he occupied as a guest, and which was then standing on Route 60 about a mile east of Clifton Forge, Virginia, was violently struck by another car.
Tingler's administrator instituted action under section 8-633, Code of 1950, commonly called the death by wrongful act statute, against Ralph E. Lockhart, owner and alleged operator of the vehicle occupied by decedent, and against William L. Gearhart, driver of the other automobile involved in the collision. Verdict was returned for both defendants, and from the judgment entered thereon, the administrator obtained an appeal.
Appellant's several assignments of error may be consolidated and stated as follows:
1. The evidence conclusively establishes as a matter of law that Ralph E. Lockhart was guilty of gross negligence, that William L. Gearhart was guilty of negligence, and that their combined negligence proximately caused the collision and the death of decedent; hence both defendants should be adjudged liable and the case remanded for assessment of damages.
2. If the liability of the defendants has not been thus conclusively established, still the court committed prejudicial error in giving and refusing certain instruction, and the judgment should be reversed and a new trial awarded on all issues.
These contentions require that the salient facts and some of the testimony disclosing how the tragedy occurred be stated.
Defendant Lockhart is engaged in business in Covington, Virginia, and on December 29, 1951, about eight o'clock p.m., he requested Earl Persinger, a boy nineteen years of age, to drive him home. As the two were about to leave Lockhart's place of business, Marvin Wayne Tingler asked if he could go along, and Lockhart agreed to his request. The three thereupon seated themselves in Lockhart's Nash car with Persinger at the wheel. At that time Lockhart was somewhat under the influence of intoxicants and he took with him a pint bottle of whiskey. After he got into the car, instead of going to his home which was nearby, he directed Persinger to drive him to Lewisburg, West Virginia. As time went on he continued to drink and became more definitely under the influence of intoxicants, and directed Persinger to drive him to various towns in Virginia and West Virginia. Two or more trips were made between Covington and Lewisburg, and to several other places. Late in the evening Tingler asked that he be taken to his grandfather's home in Covington where he lived, but Lockhart paid no attention to his request, and Persinger, at Lockhart's direction, drove on through Clifton Forge and to Lexington, Virginia. When they reached the Robert E. Lee Hotel in Lexington, Lockhart, who was then definitely drunk, tried to obtain a room at the hotel. He was refused admittance, and after some further delay, Persinger started driving back west on Route 60 toward Clifton Forge and Covington.
On the trip back west Lockhart was in the front seat with Persinger, and Tingler was asleep in the rear seat. When they reached a point on the highway at the western edge of the village of Cliftondale a mile east of Clifton Forge, the car sputtered, thus indicating that the gas had been exhausted. However, Persinger was able to drive off the hard surface and onto the right shoulder of the road before the car actually stopped.
At this point the hard surfaced part of the highway is 30 feet 6 inches wide and is divided into three traffic lanes of equal width, which are marked off by broken white lines.
There is some conflict in the testimony of Persinger and Lockhart as to what occurred when the car stopped. Persinger testified that when it was ascertained that the car was out of gas, Lockhart told him to turn the vehicle around and drive back to a gas station, but as he knew of no nearby station, he informed Lockhart that he would walk into Clifton Forge and get some gas and bring it back. He thus described what he then did and what Lockhart said and did with the car:
'
* * *
* * *
Persinger further testified that he then saw the lights of a car approaching from the west, which turned out to be the vehicle driven by Gearhart, and that he waved his hands to warn the driver but was unable to attract his attention. The next moment the eastbound vehicle crashed into the left side of Lockhart's car which was standing across the road partially blocking the center and eastbound traffic lanes.
Lockhart denied that he backed the car into the road and insisted that such movement was made by Persinger. He did, however, say that when the car stopped, he was awakened and made aware of the fact that the car had run out of gas and that he suggested to Persinger to turn it around in the highway and go back to a filling station.
Westward from the scene of the accident the three-lane highway is straight for 1,047 feet. From the extreme western end of this 1,047-foot stretch, there is a slight down grade eastward, but the highway levels out several hundred feet west of the point of impact and is comparatively level from there to where the collision occurred.
The maximum speed for passenger cars at the date of the accident was 50 miles per hour. About fifty feet westwardly from the point of collision, there was a highway marker indicating that the maximum speed eastwardly therefrom was 35 miles per hour, and Gearhart's car had entered that area when the collision occurred. Marks on the highway indicated that his vehicle skidded 62 feet astride the line dividing the center and eastbound lanes before it struck the Lockhart car, skidded 72 feet thereafter, then traveled without skid marks an additional 36 feet and came to rest on the southern edge of the hard surface 108 feet from the point of impact. Lockhart's car was struck on its left rear door, and the force of the blow knocked it eastwardly 44 feet and to the northern edge of the hard surface. Both vehicles were practically demolished, Marvin Wayne Tingler was instantly killed while asleep in the rear seat, and Lockhart thrown from his car to the highway.
Defendant Gearhart testified that he was driving between 50 and 60 miles per hour and did not see the 35 mile speed sign. Nor did he see Lockhart's car, which he said had no lights on it, until he was about 62 feet, or slightly farther, from it.
The foregoing uncontradicted facts and that part of the testimony bearing upon who backed the Nash car across the highway conclusively establish gross negligence on the part of Lockhart which was a proximate cause of the collision. There is but little doubt, if any, that he by use of the starter backed the car from the shoulder to where it stopped in the road. That his grossly negligent act may have been due to his intoxication does not excuse his wrongful conduct. Hardiman v. Dyson, 194 Va. 116, at 120, 72 S.E. (2d) 361; 38 Am. Jur., Negligence, sec. 36, p. 283. If, on the other hand, Persinger, as contended by Lockhart, backed the car across the road, Lockhart is nevertheless responsible. Persinger was acting as his agent and such movement of...
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