Wright v. Kelly

• Decision Date: 27 November 1961
• Docket Number: No. 5293,5293
• Citation: Wright v. Kelly, 122 S.E.2d 670, 203 Va. 135 (1961)
• Parties: JOSH EMMERSON WRIGHT v. JOHN W. KELLY, ADMINISTRATOR, ETC. Record
• Court: Virginia Supreme Court

Page 670

122 S.E.2d 670

203 Va. 135

JOSH EMMERSON WRIGHT v. JOHN W. KELLY, ADMINISTRATOR, ETC.

Record No. 5293.

Supreme Court of Appeals of Virginia

November 27, 1961.

Robert T. Vaughan and Frank M. Slayton (Easley, Vaughan & Slayton, on brief), for the plaintiff in error.

Don P. Bagwell (Tuck, Bagwell & Dillard, on brief), for the defendant in error.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

This is an action for the death by wrongful act of John Anthony Kelly, an infant 17 months of age, sometimes hereinafter referred to as Tony, who was killed instantly as a result of the alleged negligence of Josh Emmerson Wright, the defendant, when he backed his truck onto the child in the driveway of the Kelly home. A trial by jury resulted in a verdict of $20,000 for the administrator, plaintiff, on which the trial court entered judgment, and the defendant is here on a writ of error.

The defendant contends that the trial court erred in (1) not holding, as a matter of law, that the defendant was free of actionable negligence; (2) granting plaintiff's instruction No. 1; (3) permitting the plaintiff to exhibit a picture of the decedent to the jury; and (4) allowing the introduction of certain evidence.

The fatal accident occurred in Halifax county, Virginia, on the morning of June 25, 1959, when the defendant was backing his truck out of the driveway which runs through the Kelly yard into a private farm road.

On the morning of the accident the defendant, with James Shelton as a passenger, drove his lumber truck, which had a long, flat body elevated an estimated three or four feet above the ground and extending back approximately six feet behind its large dual rear wheels, to the Kelly home for the purpose of offering the child's grandfather a ride to Brookneal. He had on other occasions visited the Kelly home, was acquainted with Tony, and knew that he and other children frequently played in the yard around the house. As the defendant drove into the driveway he saw Tony playing in the yard with his four-year-old cousin. When Tony saw the truck he came over to the driveway and ran along the side of the truck for a short distance and the defendant talked to him as he drove along. The defendant parked the truck in the driveway beside the Kelly home, leaving Shelton in it, and went around to the back porch of the house to inquire for Tony's grandfather. He last saw Tony in the general area of the parked truck and only a few yards away from it.

The defendant remained in the back of the house approximately ten minutes, and as he returned to his truck with the child's grandfather they began to laugh and joke about a comical hat which the grandfather wore. This hilarity continued after they both got in the truck and until the fatal accident.

The defendant testified that he looked down the driveway as he walked to the driver's side of the truck before getting into it. He stated that he was not thinking about Tony being near the truck when he last saw him, and had he thought of this he would have gone around to the back of it to look for him before backing out. After the defendant got back in the truck he started the motor, looked in the side view mirror, and, before backing, waited for Shelton to move his seat so Tony's grandfather could sit in the middle.

When Tony's mother heard the truck motor start she went to the front door of the house to look for him and saw him standing under the body of the truck close behind its right rear dual wheels. She was then approximately 20 to 25 feet away from the truck, which had not started to move, and she began screaming and running toward the child. Tony's aunt heard the screams and she began screaming and ran from the rear of the house toward the truck. She came from the same direction as the defendant when he returned to the truck with the grandfather, and she saw the child standing behind the rear wheels of the truck before it moved.

After the mother started screaming and running to her child the truck started backing slowly and then stopped momentarily after the dual wheels had knocked him down. It then moved backwards again a short distance and stopped after the wheels rolled onto the child, killing him instantly while the mother was within one and one-half feet of reaching him.

The truck's motor made no more than the normal noise, and the window on the driver's side was down. The defendant and his passengers testified that they were laughing and joking and did not hear the screams of the mother and the aunt until the truck had backed on the child. The defendant did not see the mother until he looked through the back window of the cab, at which time the fatal accident had already occurred.

Tony's father testified that on the afternoon following the accident the defendant stated to him that the accident was all his fault. This the defendant later denied.

The defendant first contends that the trial court should have sustained his motions to strike the evidence, either at the close of the plaintiff's case or after the close of the whole case, because there had been no showing of actionable negligence on the part of the defendant.

He argues that the decisions of this Court in White v. Edwards Chevrolet Co., 186 Va. 669, 43 S.E.2d 870, and Ward, Adm'r v. Lewis, 197 Va. 811, 91 S.E.2d 393, are controlling here and that the evidence did not, as a matter of law, make out a case of actionable negligence on the part of the defendant because he was not required to search for the child whom he could not see, standing under the truck, before backing it. On the other hand, the plaintiff says that under our holding in Conrad v. Taylor, Adm'r, 197 Va. 188, 192, 193, 89 S.E.2d 40, 43, the facts and circumstances of the instant case presented a jury question as to whether the defendant should have made a reasonable inspection to determine the child's whereabouts before backing the truck.

It is true that "Ordinarily a driver is not required to search for children on the running board on the far side of the vehicle, or hidden underneath or in front of it, whom he cannot see, before starting.' ' White v. Edwards Chevrolet Co., supra, 186 Va. at p. 674, 43 S.E.2d at p. 872. But where the driver of a motor vehicle knows, or in the exercise of reasonable care should have known, of the presence of a child playing around or near his vehicle a short time before moving it, he is charged with the duty of exercising the same degree of care and inspection that a reasonably prudent person would have exercised under similar circumstances and conditions. Conrad v. Taylor, Adm'r, supra, 197 Va. at p. 191, 89 S.E.2d at p. 42; 2 A Blashfield's Cyclopedia of Automobile Law and Practice, § 1509, p. 440, and footnotes pp. 441, 443 and p. 62 of the supplement. See also Hall, Administratrix v. Miles, 197 Va. 644, 651, 90 S.E.2d 815, 821; Annotation, 63 A.L.R.2d, § 22, p. 239, on liability for injuries resulting from backing on private premises.

The degree of care required of the driver of a motor vehicle not to injure a child whom he has seen, or in the exercise of reasonable care should have seen, in or near a private driveway, street or highway is commensurate with the apparent ability of the child, taking into consideration his age, maturity and intelligence to foresee danger and the probability of injury. The conduct of a child is not measured by the same rules which cover that of an adult, because it is a matter of common...