Yeary v. Holbrook

• Decision Date: 09 September 1938
• Parties: YEARY et al. v. HOLBROOK.
• Court: Virginia Supreme Court

198 S.E. 441

YEARY et al.

v.HOLBROOK.

Supreme Court of Appeals of Virginia.

Sept. 9, 1938.

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Error to Circuit Court, Buchanan County; Alfred A. Skeen, Judge.

Action by Willard Holbrook against Emmet Yeary and another for injuries resulting from an automobile collision. From a judgment for plaintiff, defendants bring error.

Judgment affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Hamilton & Heuser, of Norton, and Rixey & Rixey, of Norfolk, for plaintiffs in error.

F. H. Combs, of Grundy, for defendant in error.

HUDGINS, Justice.

Willard Holbrook recovered a verdict and judgment in the sum of $4,000 for personal injuries received when a Chevrolet coupe, driven by him, collided with the defendants' truck loaded with beer, traveling in the opposite direction around a sharp curve on the highway between Haysi and Grundy.

The evidence is in direct conflict, and is sufficient to support a verdict for either party. Under these circumstances, we will consider only such evidence as may be material to decide questions of law raised by exceptions to rulings of the trial court.

The first assignment of error is stated thus: "The court erred in allowing the plaintiff to make the demonstration of the automobile before the jury at the view, and in allowing the witnesses for the plaintiff to testify at the view, and erred in the conduct of the view, all to the prejudice of the defendants."

When the court adjourned at the close of the first day of trial, both parties announced that they had introduced all of their testimony, except defendants reserved the right to call one more witness if he were present on the next day. When court convened on the second day of the trial, counsel for defendants stated that the absent witness was not available. Thereupon the court announced: "Motion having been made by counsel for the plaintiff for a view by the jury of the premises where the accident occurred, the court will grant a view of the premises, but will direct in advance that counsel for both plaintiff and defendant will be permitted to use any witnesses upon the ground where the accident occurred to point out the positions of the cars, the condition of the road, etc., that have been detailed in evidence; but, the proceedings on the ground will be confined solely to the location of the various positions occupied by the parties and the cars involved in the controversy and no explanations or additional evidence will be taken, but the jury will be permitted to make any view of the premises that they may desire, and as extensively as they may desire to view it. Any suggestions from counsel on either side?" (Italics supplied.)

Counsel for defendants objected, not to the ordering of the view, but to the announced purpose of the court that it would permit witnesses to point out to the jury the various objects, positions, and things at the scene of the accident that they had mentioned in their testimony. Among other reasons given to support the objection was that defendants, on the previous day when it was announced that the introduction of evidence had been concluded, had. excused all of their witnesses.

The court, in overruling the objections, stated "that a view without witnesses to point out the premises and positions would be useless, " and that "counsel for either side can call attention to the statement of any witness and the position he said he occupied, and ask the jury to look at it." Whereupon the jury was taken to the sceneof the accident, accompanied by the sheriff, the judge, the court reporter, and counsel for the parties.

Various expressions found in the early opinions of this court indicate that a jury view is not to supply evidence, but merely to acquaint the jury with the scene, to enable them to comprehend the evidence introduced and to aid them in understanding it. See Litton v. Com., 101 Va. 833, 44 S.E. 923; Stanley v. Com., 109 Va. 796, 63 S.E. 10; Cutchin v. Roanoke, 113 Va. 452, 74 S.E. 403; Norfolk v. Anthony, 117 Va. 777, 86 S.E. 68; Scott v. Doughty, 124 Va. 358, 97 S.E. 802. Judge Burks, after a review of many previous opinions, speaking for the court in Lorillard Co. v. Clay, 127 Va. 734, 104 S.E. 384, said (page 387): "We do not wish to restrict views to cases where they will aid the jury in applying the testimony adduced on the trial. There are cases where a view will furnish 'a distinctly additional source of proof--i. e., the thing itself as autoptically observed.' In such case the view should be granted, as it would be 'of substantial aid to the jury in reaching a correct verdict.' "

The question decided in Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679, 30 A.L.R. 1345, was that a view by the jury amounted, in fact, to the introduction of evidence and was a part of the trial. It was held that on the trial of one charged with a felony his presence at the view was essential. Judge Kelly, in this opinion, again reviewed the prior cases on the question and quoted with approval the foregoing statement of Judge Burks.

The following excerpt from Judge Ritz' opinion in State v. McCausland, 82 W.Va. 525, 96 S.E. 938, is illuminating and was likewise approved by Judge Kelly (page 939):

"The purpose of introducing evidence is to inform the jury of the transaction in regard to which the trial is had, and anything pertinent to that end is proper for the purpose. Frequently in the trial of such cases material objects are introduced before the jury. In homicide cases the garments worn by the deceased are often introduced for the purpose of showing the place at which the wounds were inflicted. Can it be said that this is not evidence? It is stronger and more convincing to the jury than the oral testimony of any witness could possibly be. There can be no difference in the proffer of objects to the jury in the courtroom and such exhibition by taking the jury to view such objects, when they are not susceptible of being brought into court. The reason the jury is taken to view the ground is simply because it is physically impossible to bring it into the courtroom, and it is therefore necessary, in order that the jury may have all of the light obtainable upon the subject to which the inquiry is directed, that it be taken and shown these objects which form a part of the subject of the inquiry. In this case can it be doubted that the actual demonstration made upon the ground to show whether or not certain objects were visible from a certain point was the strongest sort of evidence that could be introduced upon that question? Likewise, the view of the jury was the very strongest evidence as to the distance between the scene of the tragedy and the place where the witness was standing whose testimony was questioned. A dozen witnesses might testify that they observed this tragedy from a certain point, and the jury would not believe a single one of them, if from the observation made upon the ground the physical conditions were such as to preclude the possibility of the truth of the witnesses' statements."

In 2 Wigmore on Ev. (2nd. Ed.), 705, the principle is stated thus: "It is wholly incorrect in principle to suppose that an autoptic inspection by the tribunal does not supply it with evidence; for, although that which is received is neither testimonial nor circumstantial evidence, nevertheless it is an even more direct and satisfactory source of proof, whether it be termed 'evidence' or not. The suggestion that, in a view or any other mode of inspection by the jury, they are merely 'enabled better to comprehend the testimony', and do not consult an additional source of knowledge, is simply not correct in fact."

The record in this case shows that, among others, five witnesses called by plaintiff testified that they either saw the car or truck before the impact, or saw or heard the collision. Two of the witnesses, Mrs. Elsie Owen and her daughter, Opal, were at their home some 75 yards from the curve and saw the truck as it passed going toward the curve. Both noticed the speed of the truck and heard it strike plaintiff's car. Jason Raines, another witness for plaintiff, testified that he was on his porch around the curve from Mrs. Owen's house and saw plaintiff's car forsome distance as it approached the curve from Grundy and saw the truck coming in sight around the curve from Haysi just a moment before the impact. Two other witnesses, Carson Colley and Fred Mullins, were on a knoll, or hill, just opposite the curve and across Russell Prater Creek and saw both the truck and the car before the impact, and immediately after the impact they ran down the hill, across a foot bridge and up to the highway. The cross-examination of these witnesses suggested, or intimated, that they might have been so far below the level of the highway that they could see very little of either vehicle. Each of these witnesses gave some estimate of the distance he or she was from the point of impact.

In view of this and other evidence, the width of the hard surface and the shoulders of the highway, the angle of the curve, the topography of the terrain, the points of observation of the witnesses at the moment of the impact, the location of the cars before and immediately thereafter, the distance from the different places of observation to the point of impact of the vehicles, were important objects and things to a comprehensive view by the jury. It cannot be assumed that members of the jury, before the view, were fully cognizant of these matters. It was imperative in this case, as it is in most cases when a view is ordered, that someone be designated to show pertinent objects to the jury in an impartial manner.

For more than two centuries a jury view of objects that are physically impossible to be brought into the courtroom has been a part, or, rather, an incident of a trial by jury. Neither the common law judges of England nor the trial judges...