Stallard v. Atlantic Greyhound Lines

Holt, J., delivered the opinion of the court. This is an automobile accident case in which there is that conflict in testimony quite common in litigation of this character. Such conflicts, however, are commonly settled by a jury’s verdict, although that verdict, when disapproved by the trial judge, is not so conclusive as one affirmed. — 227 — In this case, Mrs. Lucy Stallard, plaintiff, did obtain a verdict which has been set aside. When can this with propriety be done? It should only be done when the verdict is contrary to the evidence or without evidence to support it. Code, section 6251. Governing principles are plain enough, nor is their application to the facts in a given case ordinarily a difficult matter. Sometimes, however, we are confronted by borderline cases, as to which unanimity of judgments can never be expected. Where facts are involved a verdict adequately supported by evidence which the jury had a right to believe should not be disturbed. Mrs. Stallard lived near Coeburn, and on the morning of January 2, 1935, started from her home to Radford, intending to return to the State Teachers College in that city, at which she was a student. She rode in a Ford truck and with her went Vivian Dingus, M. G. Dingus, Louise Mayo, Urschel Mayo and Hazel Keith. This truck was owned by M. G. Dingus and driven by Urschel Mayo. As it moved along the Lee Highway a few miles east of Marion, it was passed by an Atlantic Greyhound bus. That bus was eight feet, two inches, wide, something over thirty-two feet long, and was being driven by R. M. Parrott. It continued on its way for about a mile or a mile and one-half, followed by the truck which it had overtaken. The Lee Highway near Groseclose spans the Norfolk & Western Railway track with a bridge elevated and arched. Just as the bus reached this bridge it stopped. The truck, which was following, ran into it. Mrs. Stallard, the plaintiff, was hurt and to recover compensation for injuries then received this action was brought. If she was a passenger, the negligence of the truck driver, if any, cannot be imputed to her; nor can it be invoked by the bus company as a defense unless it was the sole proximate cause of the accident, or unless it be that those in the truck were on some'joint enterprise. Was the negligence of its driver the sole proximate cause of the collision? — 228 — We have seen that the bus passed the truck about a mile or a mile and one-half west of the bridge. Just before the accident the truck was somewhere between one hundred and one hundred and fifty feet behind the bus. Its driver tells us that he did what he could to avoid the collision; that he applied the hand-brake and supposed that he applied the foot brake, but that the emergency which confronted him by the sudden stop of the vehicle ahead was confusing and exciting. Dingus, the owner, tells us that the driver applied the emergency brake and the foot brake also. “He seemed to do everything possible as far as I know. It was just so sudden that he didn’t get it under control.” This witness also tells us that the brakes were in good order and were checked over and tightened on the day preceding. For the purposes of this case we may concede that the truck driver was negligent. Was the bus driver negligent also? Witnesses for the plaintiff say that he was traveling at the rate of from forty to forty-five miles an hour. He was familiar with the roadway and with conditions at the crossing. The bridge was arched and narrow. This arch shut off the view of a car which was approaching from the east. That car was not seen by the bus driver until it was right on him. His bus was equipped with air brakes which he then applied with such instantaneous efficiency that Jack Eller, a senior cadet at the Virginia Polytechnic Institute, who was the sole passenger, tells us that “it kind of threw me out of my seat and my hand went over in the seat in front of me,” an incident in itself evidencing speed at this known point of danger. Undoubtedly the bus driver was confronted by a sudden emergency. Had he continued on his way, he would have run into the approaching car. One confronted by such an emergency is not required to act with the utmost good judgment, and his failure to so act must not be charged against him, but such lack of good judgment must be in an emergency not brought about by him who relies upon it. If it was, the defense of error in — 229 — extremis cannot avail. Wash v. Holland, 166 Va. 45, 183 S. E. 236; Safety Motor Transit Corp. v. Cunningham, 161 Va. 356, 171 S. E. 432; Virginia Electric & Power Co. v. Blunt’s Adm’r, 158 Va. 421, 163 S. E. 329; Lavenstein v. Maile, 146 Va. 789, 132 S. E. 844; Real Estate Trust & Insurance Co. v. Gwyn’s Adm’x, 113 Va. 337, 74 S. E. 208. Even Eller knew the dangerous conditions ahead. He tells us “As we began to approach the bridge—it is a kind of dangerous place up there and I kind of raised up to see if another car was coming.” The bus driver also knew what the conditions were at this bridge for he was familiar with the road. These busses are wide and heavy, and their drivers are charged with the duty of keeping them under control, particularly in situations where emergencies are always possible; and this duty is not lessened because some other vehicle follows too closely. In this instance the driver knew that this truck was following, for he had passed it only a mile or a mile and one-half behind. “When one vehicle is following another along a public highway, the duties of the drivers of the respective vehicles are reciprocal, and the duties which each owes to the other are governed, to a large extent, by the circumstances of the particular case.” 42 C. J. 948. The negligence of the driver and its contribution to the accident has been established by the jury’s verdict. Had Mrs. Stallard set out upon some joint venture or was she a passenger for hire? A ticket by rail from her home to Radford would have cost $3.35. She was to pay Mr. Dingus $2.00 and went by truck because the cost was less. Her evidence is: “Q. Were you to pay Mr. Dingus anything for this trip? A. I was to pay Mr. Dingus $2.00. I was expecting to pay him at the journey’s end. I hadn’t paid him. I figured I would pay him when we got to Radford. I had a note from his daughter—I had planned to go back on the train—and they sent me this note and asked if I would like to go along and said I would save $1.35 if I went with them instead of on the — 230 — bus or train.” She further tells us that she had no control whatever over the truck or its driver. “The ‘joint enterprise’ which will render the contributory negligence of a driver imputable to a person riding with him must invest such person with some voice in the control and direction of the vehicle. The rule is founded upon the doctrine of principal and agent. The passenger must be so related to the driver as to make the maxim ‘Qui facit per alimn facit per se’ applicable. As said by this court in Virginia R. & P. Co. v. Gorsuch, 120 Va. 655, 91 S. E. 632, Ann. Cas. 1918B, 838: ‘The doctrine of imputable negligence has been discussed and the books are full of cases dealing with the question. There are some conflicts in the decisions, but it may be regarded as settled by the overwhelming weight of authority that the negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver.’ ” Gaines v. Campbell, 159 Va. 504, 166 S. E. 704, 707; Johnston v. Kincheloe, 164 Va. 370, 180 S. E. 540; Miles v. Rose, 162 Va. 572, 175 S. E. 230. Mrs. Stallard was a passenger for hire. None of the indicia of a joint venture are present. The defendant relies upon this release: “Release and Assignment. $50.00 January 5, 1935. Receipt is hereby acknowledged of the sum of Fifty and ............no/100 Dollars ($50.00) in full settlement and final discharge of any and all claims or demands by reason of any damage, loss or injury which heretofore has been or which hereafter may be sustained by the undersigned Mrs. Lucy Stallard in consequence of an accident occurring on or about the 2nd day of January, 1935, releasing Atlantic Greyhound Lines from all further liability. .And in Further Consideration of said sum of money to me in hand paid in settlement aforesaid, I do hereby — 231 — assign, make over, subrogate and transfer to Atlantic Greyhound Lines all claims, rights, and choses in action which I now have or which I may hereafter have against any and all persons lawfully responsible for the damage, personal or property, on or about the date aforesaid. (Signed) Mrs. Lucy Stallard (Seal) Mr. U. T. Mayo, Witness. J. L. Cantwell, Jr., Witness.” The claim agent who secured it testified that it was freely executed and that Mrs. Stallard knew perfectly well what she was doing; that he at first offered a smaller sum but raised it to $50.00 at her insistence. On cross-examination he admitted that he told her that there was no liability upon his company, which, as we have seen, did not accord with the facts as found by the jury. The witness Mayo testified that she was then restless and that he did not know if the release was read to her, but that she looked at it before signing it. A $50.00 draft was sent to the plaintiff and soon thereafter was returned to the Bus Company, which in turn returned it to her. It has never been cashed. Dr. Boatwright said that Mrs. Stallard was rather severely hurt; that she was nervously upset “and had two very nasty wounds about her face.” The claim agent from Bristol called before breakfast on the morning after the accident. Her father told him that she was in no condition to sign anything and that he should wait until they could see how the case developed, when he would be notified. He did not wait but returned again on the 5th, when the release was executed. Her father said that she was still not in a condition to do anything and that for four or five days her conversation was incoherent. Emmett Yeary said that her condition was bad for several days. He saw her on the 5th of January and she was then sick, nervous and could not see; he.tried to talk to her but she made no intelligible answers and fell back on the bed unconscious. — 232 — Mrs. Kyle Carrico saw her on the day after the accident. She was then irrational and vomited often. She saw her again on Saturday, the 5th; she was then very nervous and flighty. Mrs. A. B. Prichard said that she saw her every day of that week except Thursday; that she was very sick, awfully nervous and crying, and that as late as the following Tuesday she was frequently unable to recognize her friends. The plaintiff herself testified that she had no recollection whatever of ever having signed this release. From the defendant’s own evidence it was secured with unseemly haste. However, in any event, a jury question was plainly presented. In Flowers v. Virginian Railway Co., 135 Va. 367, 116 S. E. 672, 677, this court, speaking through Kelly, P., said: “It is true that evidence of fraud and imposition in cases of this character must be clear and convincing. It does not follow, however, that the court can fairly take the question from the jury merely because the court, upon the facts proven, would have reached the conclusion that the release was valid. This can only be done where the evidence is clearly insufficient to support a different conclusion.” The defendant further contends that a verdict for seven thousand dollars is excessive. The plaintiff is a widow twenty-nine years old. She said that she still suffers from severe headaches, from excessive nervousness and from crying spells which she cannot control. Her lip is drawn to oné side, and when she laughs one “side of my lip goes up and the other stays down,” this from a cut that had to be sewed up, and there is some obstruction in her nose which still gives her trouble. We have already stated in some detail conditions which followed upon the accident. In January she returned to Radford to pursue her studies there, but her condition was such that upon the advice of a doctor she returned to her home in about a week. In — 233 — May or June, 1935, she did relief work for the government, and she did some work in that year as a substitute teacher. “ * * * the law is well settled in this State that the verdict of the jury in such cases will not be set aside as excessive unless it is made to appear that the jury has been actuated by prejudice, partiality or corruption, or that they have been misled by some mistaken view of the merits of the case, and such does not appear in this case. Southern Ry. Co. v. Smith, 107 Va. 553, 59 S. E. 372; E. I. Dupont De Nemours & Co. v. Taylor, 124 Va. 750, 98 S. E. 866, and cases cited.” Morris & Co., Inc. v. Alvis, 138 Va. 149, 171, 121 S. E. 145, 152. See also, Diamond Cab Co. v. Jones, 162 Va. 412, 174 S. E. 675, and Michie’s Digest, vol. 3, p. 423, where a host of cases to the same effect is cited. By way of cross assignment the defendant has objected to plaintiff’s Instruction No. 7 and contends that it placed upon the defendant the burden of proving that the release was valid. That instruction reads: “The Court further instructs the Jury that the writing referred to as a relase offered in evidence by the defendant has no more force or solemnity than any other contract in writing and that unless the jury believe from all of the evidence offered in the case that the minds of the contracting parties, that is the mind of the plaintiff and the mind of the defendant, met upon the terms of said writing, the same is not valid or binding, and should be disregarded by the jury in this case.” From this there might have been some confusion as to where the burden of proof rested, but if such did in fact exist, it was cleared away by Instructions “G” and “H,” given at the instance of the defendant. They read: “G” “The Court instructs the Jury that the law never presumes fraud, but the presumption is always in favor of fair dealings. He who alleges fraud must establish it, and by clear and satisfactory proof.” — 234 — “H” “The Court instructs the Jury that undue influence, which is a species of fraud, must not be presumed; must be clearly and strictly proved; that the burden of such proof rests upon the plaintiff, Mrs. Lucy Stallard, and that it is encumbent upon her to establish undue influence by a preponderance of the testimony.” The defendant, by way of cross assignment, has also objected to plaintiff’s instruction No. 12. When this exception was taken no reasons therefor were assigned. Therefore, under a settled rule of court, this exception cannot be considered. Eules of Court, Eule XXII. For reasons given, the judgment of the trial court must be set aside and the jury’s verdict reinstated, with final judgment for the plaintiff. Reversed.