Catron v. Birchfield

Gregory, J., delivered the opinion of the court. Joseph E. Catron was killed by an automobile driven by Mrs. W. V. Birchfield on the Lee highway just west of — 62 — the town of Wytheville on the night of December 27, 1929, about 8:30 o’clock. W. V. Birchfield, the husband of Mrs. Birchfield and the owner of the automobile, was riding therein at the time Catron met his death. This action was instituted by Mrs. Catron as administratrix against W. V. Birchfield, and after the plaintiff had concluded her evidence, the defendant moved to strike out all of the evidence, assigning the grounds of the motion. Whereupon the trial court sustained the motion, struck out all of the evidence and practically directed a verdict in favor of the defendant. The jury, accordingly, returned a verdict for the defendant which was approved by the trial court. The sole question to be decided is whether the trial court committed error in sustaining the motion striking out all of the evidence of the plaintiff. It will not be necessary to recite all of the evidence in detail. A discussion of the testimony, which is favorable to the plaintiff’s case, will be sufficient to determine the correctness of the ruling of the trial court. The Lee highway runs practically east and west at and near the point where the accident occurred. The hard surface of the road is about eighteen feet in width and there are gravel shoulders on each side about two feet in width. There is a slight curve in the road, bearing to the left, when one is traveling in a westerly direction, and there is a slight hill at or near the point where the accident occurred. Mrs. Birchfield was driving in a westerly direction. A Ford car, being driven by George Weston in a westerly direction, and in which A. T. Hairston was riding as a passenger, was overtaken and passed by the Birchfield car. Weston was driving at the rate of thirty miles per hour and in order for the Birchfield car to pass the Ford car, it necessarily must have been driven at a greater rate of speed. The night was dark and the ground was covered with a light snow, which had been entirely cleared from the road except on the extreme sides. Hairston testified that just as the Birchfield car passed the Ford car in which he was riding he “spied — 63 — a man” some thirty or forty yards down the road ahead of the Ford car; that the man (who afterwards was identified as Joseph E. Catron) was on the north side of the road, near the edge of the hard surface. He said: “I spied the walking man facing the light and when this car (the Birchfield car) cut and got straight in front of us I did not see the man any more * * *.” He further testified that he saw the man by the lights of the Birchfield car, “walking down the road facing the lights” and that “he seemed to be in the act of coming this way.” Hairston was asked if the man was walking along “ordinarily” and he replied, “To be sure, he looked to be that way.” Again he was asked, “Just walking on down the road in an ordinary way” and his reply was “Yes, sir.” Again he was asked, “You saw him by the lights of the other car” (Birchfield car) and he replied “Yes, sir.” The man who was seen by Hairston was Joseph E. Catron the husband of the plaintiff in error. After the accident, the body of Catron was examined and it was disclosed that there were two bruises on the front of each leg, about the size and character, and of the approximate length, to have been made by the front bumper of an automobile, if he had been facing the automobile. Of course, there were other wounds and bruises, but we deem it unnecessary to describe them. The windshield of the Birchfield car was very dirty and covered with mud and muddy water to such an extent that it became necessary, when the car was being pulled to Wytheville, a short time after the accident, for the person guiding the car, to stop and wipe the windshield in order to secure a better vision through it. Catron had been drinking several hours before the accident and Mrs. Catron testified that just before he left home on the night in question “he knew everything he was doing, he wasn’t intoxicated very much, he could attend to business.” For the purpose of determining whether the trial — 64 — court committed error in striking the evidence, it will not be necessary to recite the other evidence which was introduced. The defendant denied all negligence and asserted that the deceased met his death through his own contributory negligence. Counsel for the defendant has strenuously argued these two propositions in order to sustain the judgment of the trial court. But upon the present appeal it is only nceessary to determine whether the evidence of the plaintiff, which we have reviewed, would have been sufficient to have sustained a verdict in her favor. Catron, according to Hairston’s testimony, was lawfully walking upon the highway. He was walking as “near as reasonably possible to the extreme left side or edge of same.” (Code, section 2145(73), subd. h.) If Hairston’s testimony be true (and that is for the jury), it would be sufficient to sustain a finding that Catron was not guilty of contributory negligence. The testimony, if believed, would support a finding that the windshield of the Birchfield car was not sufficiently clean, so that a clear vision ahead could be had by the driver; that if Hairston could have seen Catron by the lights of the Birchfield car, then the driver of that car should have seen him, and that the failure on the part of the driver of the Birchfield car to see Catron and to keep a proper lookout was the proximate cause of his death. A verdict for the plaintiff, based on such finding, from the testimony referred to, would be sufficiently supported and could not be set aside on the ground that it was without evidence to support it. The legal rule controlling a motion to strike out all of the evidence is clearly stated in the case of Green v. Smith, 153 Va. 675, 151 S. E. 282, 283, where it is said: “It is now settled in Virginia that a motion to strike out all the plaintiff’s evidence may be used wherever a demurrer to the evidence by the defendant will lie, or it plainly appears that the trial court would be compelled to set aside any verdict found for the plaintiff as being without evidence to support it. Davis v. Rodgers, 139 Va. 618, 124 — 65 — S. E. 408; Meade v. Saunders, 151 Va. 636, 144 S. E. 711; Barksdale, Adm’r v. Southern Ry. Co., 152 Va. 604, 148 S. E. 683; Hentz v. Wallace’s Adm’r, 153 Va. 437, 150 S. E. 389. See, also, Limbaugh v. Commonwealth, 149 Va. 383, 140 S. E. 133, 135. “A motion to strike out all the evidence of the adverse party is very far reaching and should never be entertained where it does not plainly appear that the trial court would be compelled to set aside any verdict for the party whose evidence it is sought to strike out. A motion to strike out all the plaintiff’s evidence is closely analogous to a demurrer to the evidence by the defendant; but with this important difference,, that upon an adverse ruling by the court the defendant is entitled to have submitted to the jury both the question of the plaintiff’s right to recover and the measure of recovery, while a demurrer to the evidence finally takes away from the jury all consideration of the plaintiff’s right of recovery and submits it to the court. “In considering a motion to strike out all the plaintiff’s evidence, the evidence is to be considered very much as on a demurrer to the evidence. All inferences which a jury might fairly draw from plaintiff’s evidence must be drawn in his favor; and where there are several inferences which may be drawn from the evidence, though they may differ in degree of probability, the court must adopt those most favorable to the party whose evidence it is sought to have struck out, unless they be strained, forced, or contrary to reason. Dove Co. v. New River Coal Co., 150 Va. 796, 143 S. E. 317; Limbaugh v. Commonwealth, 149 Va. 393, 140 S. E. 133, 135; Goshen Furnace Corp. v. Tolley’s Adm’r, 134 Va. 404, 114 S. E. 728.” The case of Green v. Smith is controlling here and when we apply the rules there announced to the evidence in this case we are of opinion that the trial court erred in striking out the plaintiff’s evidence and that the plaintiff was entitled to have the jury consider and pass upon the testimony which was introduced. — 66 — The verdict will be set aside, the judgment reversed and the case is remanded for a new trial. Reversed.