Saunders v. Hall , 176 Va. 526 ( 1940 )

Holt, J.,

dissenting.

This accident occurred about 1:00 P. M. July 27, 1937, upon a paved concrete road about 16 feet wide. It had been raining and was still drizzling. Traveling west on its right-hand side was a Ford truck and trailer, 1936 Model, hereafter referred to as the lumber truck; following it was a passenger car, a sedan; going east, and on its right-hand side, was an oil truck. As these vehicles approached each other, the sedan undertook to pass ahead and turned to its left. At that time the oil truck was so near at hand that the sedan driver was forced to turn still further to his left and passed the oil truck about where Main street joins the highway. The oil truck and the lumber truck collided. Plaintiff’s decedent, E. R. Hall, driving the oil truck, was killed. Elmer Hall drove the lumber truck and with him went his friend, William Smith. Smith, Elmer Hall and William Taylor are the only witnesses testifying who have first-hand knowledge of conditions obtaining when Hall was killed.

Elmer Hall was introduced as a witness by the plaintiff, who asked that he be treated and examined as an adverse witness. To that, objection was made, and the court said:

“Well, proceed along the lines of normal expectancy until it develops he is adverse; then you can cross-examine him. I do not see why you should not proceed with the ordinary line of questioning of the witness.”

No such conditions afterwards developed during the plaintiff’s examination.

Elmer Hall was then recalled by the defendant. He said that he drove the lumber truck for W. G. Saunders; that it was a Ford truck and trailer, 1936 Model, and was then lightly loaded with lumber. Just before the accident he was driving on his right side of the road, which was straight, paved with concrete and about 16 feet wide. It was then drizzling and the road was slick. He saw the oncoming oil truck, coming pretty fast, though he does not undertake to say how fast. He was followed by a passenger car, a sedan. It undertook to pass him on his left but gave no passing signal, and he did not see it at all until it was even with the cab of the truck. The sedan then faced the oil truck and to avoid a collision turned still further to the left and passed the oil truck to its right, went on and has not since been seen. The oil truck, to avoid a collision with the sedan, turned to its left, which brought it in front of the lumber truck and made a head-on collision imminent. He was asked:

“Q. Elmer, at the time that you saw this truck and this passenger car facing each other, did you do anything besides turn to the left?

“A. Yes, sir. I slapped on the brakes one time, and then I saw the oil truck turn out in front of me; I throwed this truck in second gear and tried to get out of the way of it.”

At that time the oil truck turned to the right, back into what would have been its normal line of travel. He said that had the oil truck not done this, it could have passed to the rear of his truck on the north side of the road. The reason he gives for not turning to the right was that it would have taken him off the paved surface and into a grass-covered ditch. The oil truck struck the lumber truck just behind its cab.

William Taylor, a colored man, lived on the corner of Main street and this highway and was walking on its south side towards and near his home. He tells us at some length what he saw:

“A. Well, right at that particular time I judge—I didn’t make a good survey or anything, but I think I was about fifty yards at that time.

“Q. Now, tell the jury just what you saw.

“A. I was walking down the King’s Highway. I had been held up at the D. P. store on account of a downpour of rain, and it had slowed up, and it was drizzling, and I was on the south side of the King’s Highway going west. As I got within fifty or seventy-five yards, more or less, of my home, I saw an oil truck approaching me, also on the south side of the King’s Highway. I heard a flashing of a motor behind me and I looked back over my right shoulder, which would be on the north side of the King’s Highway; I saw a log truck coming along, the lumber truck. Just at that same time I saw a green sedan pull out from behind it and begin to race down the road to get by. They raced down the road until they had reached where I was then and began to pass; about that time this green sedan was going at such a rapid rate of speed it had gotten too close to this oil truck, which was approaching from the west, going east, and he going west. He couldn’t get in front of that oil truck so he went by that oil truck on the south side at Main street. When he went by I saw the driver of the oil truck made a little turn northwardly and continue on. I looked back and I saw this lumber truck had put on brakes, apparently had, and the wheels wasn’t turning no more. It then began to go in a kind of sliding form and gradually creeping across the road to the south. Just about that time I heard a distressing cry and the crash. I had to jump the ditch, and when I jumped in the ditch they piled up on the south side of the road in the ditch.”

He looked back and saw the lumber truck coming—“just at that moment I saw the green sedan pull out from behind it. * * * The lumber truck and the green sedan was coming, the motors were roaring as if to get by one another.” He was asked what the oil truck did and said: “Well, made a little sharp turn, I would say turn; I said it made a commotion in the statement I once said; they asked what I meant by a commotion, and I said as if to turn out and allow the green sedan to pass it;” and that the oil truck went about 18 inches, to the north of the center of the paved highway. The lumber truck put on its brakes and skidded from a point 35 or 40 yards to the east of Main street, which is about 35 feet wide. The oil truck turned to its left at the edge of Main street, probably at its western edge. He was asked about the speed of the oil truck and said: “ * * * I can’t term speed very well walking and the car traveling, but I did say and I would say around 25 or 30 miles an hour, probably 25 or 30.” He also said: “I couldn’t term speed from walking and a car approaching.”

He was also asked if he knew the speed at which these trucks were traveling and said that he did not.

He was further questioned about the racing of the lumber truck and the sedan and answered: “I said the motors were roaring as if racing; that is what I said,” and that the lumber truck and the oil truck were about 75 yards apart when he saw the green car attempting to pass. The sedan did pass the lumber truck and it passed the oil truck to the south and to its right, where Main street comes into the highway.

William Smith, who, as we have seen, rode with Elmer Hall in the lumber truck, said that they were going from 20 to 25 miles an hour and that the road was slick and that he heard no passing signal from the sedan.

It is true that a jury's verdict settles most conflicts in evidence but the testimony of an unimpeached witness, not contradicted and not inherently improbable, can not be set aside, even though he be an interested party. We held otherwise in Chesapeake & O. Ry. Co. v. Martin, 154 Va. 1, 143 S. E. 629, 152 S. E. 335 (March 20, 1930). That case was reversed on appeal. Chesapeake & O. Ry. Co. v. Martin, 283 U. S. 209, 51 S. Ct. 453, 456, 75 L. Ed. 983 (decided April 13, 1931). There the Supreme Court said that the rule “is definitely to the contrary.”

In Spratley v. Commonwealth, 154 Va. 854, 152 S. E. 362, Mr. Justice Epes said:

“While the jury is the judge of both the weight of the testimony and the credibility of witnesses, it may not arbitrarily or without any justification therefor give no weight to material evidence, which is uncontradicted and is not inconsistent with any other evidence in the case, or refuse to credit the uncontradicted testimony of a witness, even though he be the accused, whose credibility has not been impeached, and whose testimony is not either in and of itself, or when viewed in the light of all the other evidence in the case, unreasonable or improbable, and is not inconsistent with any fact or circumstance to which there is testimony or of which there is evidence. There must be something to justify the jury in not crediting and in disregarding the testimony of the accused other than the mere fact that he is the accused, or one of them.”

See also, Nelson v. Commonwealth, 168 Va. 742, 191 S. E. 620.

Moreover, Elmer Hall was summoned by both plaintiff and defendants and was first introduced by the plaintiff. It is true that one is not bound by some statement which his witness might make, yet he does vouch for his general standing and credibility. No one should ask a court to believe a witness whom he knew to be untruthful. Both Elmer Hall and William Smith said that the lumber truck was traveling from 25 to 30 miles an hour and that, at least, was the speed of the oil truck, because it was going as fast or faster than the lumber truck. When Taylor looked back and saw the green sedan drive out from behind the lumber truck, these trucks were about 75 yards apart and were therefore approaching each other at something like 60 miles an hour. All that happened must have happened in a moment of time. They were about two and one-half seconds apart. When the oil truck driver saw this sedan cut out from behind the lumber truck and that a collision with it seemed imminent, he did what any one instinctively would have done—he made, as Taylor said, “a little sharp turn to the left” and went 18 inches beyond the center of the street. He must have realized that the lumber truck, about seven feet wide, could not then pass him on the pavement. The sedan was then out of the way, and to avoid the approaching lumber truck, he attempted to get back on his side of the road. But the lumber truck driver had seen that the oil truck was ahead of him and that a collision appeared to be inevitable if he kept on; one of two courses was open to him—he might have turned to the right, onto the shoulder and into the ditch, or he might, at speed, have followed the sedan and passed the truck to the south as the sedan did. Had the oil truck not turned to the north but kept on its way, then it might have passed in safety both the sedan and the lumber truck. We may concede that neither of these drivers acted with the utmost good judgment, but there was no time in which to weigh chances—they were confronted with an emergency for which neither was responsible. Both of them, in the moment in which they had to decide, did what seemed to be best in the emergency thus presented.

Reliance is placed upon Taylor’s statement to the effect that the lumber truck and the sedan appeared to be racing. At the risk of repetition, I will restate that part of this witness’ testimony relied upon to support this claim.

Taylor’s home was at the junction of Main street and the highway. When first seen, the oil truck was west of Main street, the lumber truck east of it, and they were about 75 yards apart. He, himself, was walking west when “I heard a flashing of a motor behind me and I looked back over my right shoulder, which would be on the north side of the King’s Highway; I saw a log truck coming along, the lumber truck. Just at that time I saw a green sedan pull out from behind it and begin to race down the road to get by. They raced down the road until they had reached where I was then and began to pass; about that time this green sedan was going at such a rapid rate of speed it had gotten too close to the oil truck, which was approaching from the west, going east, and he going west. He couldn’t get in front of that oil truck so he went by that oil truck on the south side of Main street.” Again he said “the lumber truck and the green sedan was coming, the motors were roaring as if to get by one another.” He further said that the crash was about 35 or 40 feet east of Main street and that the lumber truck put on brakes and began to skid 35 or 40 yards from Main street. He also said that he could form no estimate as to the speed at which these racing motor vehicles were traveling.

The oil truck, when first seen 75 yards from the lumber truck, was west of Main street, for the sedan which had gone ahead passed it at that point. The collision occurred 35 or 40 feet east of Main street. That street is 35 feet wide, and while we do not know exactly how far away the oil truck was when first seen, it must have been more than 25 yards away from the point of collision; from which it follows that the lumber truck, when first seen, could not have been more than 50 yards from Main street. It put on brakes 35 or 40 yards from that point, or within 10 or 15 yards from the time that the sedan shot out from behind it.

If there was racing at all, it could in no event have been for more than 10 or 15 yards. Certainly it could not have “raced down the road until they had reached where I was then and began to pass,” for Taylor afterwards said: “Well, he never stopped until the crash, because he was skidding right directly to me, because that is why I jumped in the ditch.” One can not be racing and skidding with brakes on at the same time.

This witness, who was near enough to hear these motors roar, heard no passing signal given by the sedan. Elmer Hall and William Smith both say that there was no such signal given. Taylor could not undertake to say how fast the lumber truck was traveling; Hall and Smith say that it was going from 25 to 30 miles an hour, and Hall further states that he knew nothing at all about the sedan until it had passed his trailer and pulled abreast of his seat in the cab.

It is true that we accept the jury’s verdict on matters in dispute unless it is “plainly wrong.” But there is no conflict of evidence as to the absence of a passing signal or as to when Elmer Hall first knew the sedan intended to pass him. Some distance must have been covered by these vehicles between the time that the sedan pulled out from behind the truck and the time Hall first saw it, and the possible period in which they were racing is, thereby, correspondingly cut down.

Demonstratively the truck could not have been racing the sedan until it knew that there was a sedan. The sedan did pass the truck, and for a moment of time was abreast of it. In such circumstances, it is common knowledge that to one ahead looking back they appear to be racing. It is plain that the sedan and lumber truck were not racing when the oil truck turned to its left. No truck driver in his right mind, meeting these two vehicles abreast racing on this narrow road, would turn from his rightful lane, in which the sedan then was, into the lane of an oncoming truck. That he did turn was because the sedan was close upon him; danger from it was imminent while that from the truck more remote.

But aside from all of this and whether they were racing or not, what actually occurred is reasonably plain. The oil truck driver did not turn out because he saw two cars racing towards him—he turned out to avoid the sedan, which was racing ahead, and made “a little sharp turn” to the left and went beyond the center of the road and into the lumber truck’s right of way. When the danger of collision with the sedan had passed, he turned back to the south and into its pathway. When the lumber truck driver saw the sedan in his pathway ahead of him, it turned to the left and put on brakes and skidded, as trucks will do on a wet, slick hard-surfaced roadway. Skidding it was out of control and ran into the oil truck which had at that time come back to its right side of the road, striking it behind the cab driver’s seat. The accident was unavoidable in the circumstances,—circumstances brought about by the sedan, whose negligence was the sole proximate cause. The only racing that was done it did.

For these reasons I must dissent.

Spratley, J., concurs in this dissent.