Opinion
January 14, 1937
Present, All the Justices
1. AUTOMOBILES — Collision between Automobile and Truck — Questions of Law and Fact — Negligence of Automobile Driver — Case at Bar. — In the instant case, an action to recover for damage done to plaintiff's truck when it collided with an automobile driven by the individual defendant, at the time of the accident plaintiff's truck, driven by another to whom it had been loaned, was travelling east on a hard surface road and the automobile was travelling south on a dirt road. The automobile driver testified that he stopped before crossing the road, then started up in low gear and shifted to second; that the truck was three hundred feet away when he started to cross and that when he had nearly completed the crossing he realized the truck was right on him and running faster than he had any idea it was running when he first saw it. The jury returned a verdict for plaintiff.
Held: That if the automobile driver undertook to cross in front of the oncoming truck and was struck because he had underestimated its speed, his negligence was a question for the jury.
2. AUTOMOBILES — Imputable Negligence — Negligence of Driver Who Borrowed Truck Not Imputable to Owner — Case at Bar. — In the instant case, an action to recover for damage done to plaintiff's truck when it collided with an automobile driven by the individual defendant, at the time of the accident plaintiff's truck, driven by another to whom it had been loaned, was traveling east on a hard surface road and the automobile was traveling south on a dirt road. The automobile driver testified that he stopped before crossing the road, then started up in low gear and shifted to second; that the truck was three hundred feet away when he started to cross and that when he had nearly completed the crossing he realized the truck was right on him and running faster than he had any idea it was running when he first saw it. The jury returned a verdict for plaintiff.
Held: That even if the truck driver had the last clear chance to avoid the accident, his negligence could not be imputed to plaintiff who was not his master and had no interest in the venture.
3. APPEAL AND ERROR — Law of the Case — Instructions to Which No Objection Was Made — Case at Bar. — In the instant case it did not appear from the bills of exception that objections were made to instructions when given and therefore they became the law of the case.
4. INSTRUCTIONS — Objections and Exceptions — Exceptions Taken after Verdict Come Too Late — Case at Bar. — In the instant case exceptions were taken to instructions after the verdict and on a motion to set it aside.
Held: That the exceptions came too late.
5. AUTOMOBILES — Collision between Automobile and Truck — Joint and Several Liability of Drivers to Truck Owner — Case at Bar. — In the instant case, an action to recover for damage done to plaintiff's truck when it collided with an automobile driven by the individual defendant, at the time of the accident plaintiff's truck, driven by another to whom it had been loaned, was travelling east on a hard surface road and the automobile was travelling south on a dirt road. The automobile driver testified that he stopped before crossing the road, then started up in low gear and sifted to second; that the truck was three hundred feet away when he started to cross and that when he had nearly completed the crossing he realized the truck was right on him and running faster than he had any idea it was running when he first saw it.
Held: That the injury suffered was single and indivisible and those responsible therefor, the truck driver and automobile driver, were jointly and severally liable.
6. AUTOMOBILES — Master and Servant — Collision between Automobile and Truck — Liability of Master for Servant's Negligence — Case at Bar. — In the instant case, an action to recover for damages to plaintiff's truck which had been loaned to another and which collided with an automobile owned by the defendant corporation and driven by the individual defendant, its employee, the driver of the truck and the driver of the automobile were both responsible for the accident, and jointly and severally liable.
Held: That since the driver of the automobile was liable, his master, the defendant corporation, was liable.
Error to a judgment of the Circuit Court of the city of Williamsburg and James City county. Hon. Frank Armistead, judge presiding. Judgment for plaintiff. Defendants assign error.
Affirmed.
The opinion states the case.
James H. Price and Ashton Dovell, for the plaintiffs in error.
B. D. Peachy, for the defendant in error.
This is another claim for damages suffered in that automobile accident which we have this day dealt with in the cases of A. B. Brown, et al. v. Frank J. Lee, ante, page 284 189 S.E. 339, and A. B. Brown, et al. v. Robert Parker, ante, page 286, 189 S.E. 339. What has been said in them applies here mutatis mutandis modified in this. Waltrip's claim is for property damage and the defendants introduced testimony in the trial court, which was not done in the two companion cases. Waltrip was the owner of the Ford truck which he loaned to Lee for a purpose in which he was no wise interested. When it was in Lee's possession he was in complete control and was working with it for himself.
Brown was the servant and agent of the defendant company and at the time of the accident was acting within the scope of his employment.
Waltrip's truck was damaged in the collision, according to a jury's verdict, in the sum of $300. That verdict the trial court has confirmed.
What weight is to be given to Brown's evidence? He tells us "that he saw a car coming, that it was a good long ways up the road and in his opinion he had ample time to cross the highway; that he had brought his car to a stop, that he started up in low gear and shifted to second; that as he had nearly completed the crossing of the road, he realized that the truck was right on him, and that it was running at a speed beyond any speed he had any idea it was traveling at when he first saw it," and that when he shifted to low gear and started to cross the road the truck was three hundred feed away.
In the petition for a writ of error it is stated that this hard surface road is thirteen or fourteen feet wide. That doubtless is the width of its paved portion. If Brown stopped his car at its edge, and if he traveled across it at the rate of three miles an hour, which is about as slow as a car can be driven, and if when he started across the track the truck was three hundred feet away, then it must have been traveling at about seventy-five miles an hour. The plaintiff's evidence is that its speed was from twenty to twenty-five miles an hour. If Brown was traveling faster at the crossing, then of course the speed of the truck must have been correspondingly greater. Brown does not tell us exactly where he stopped his car. It it fair to presume that it was some distance back from the actual crossing. If that be true, and if he then undertook to cross, first in low and then in second gear, in front of this oncoming truck running free, and was struck because he had underestimated its speed, his negligence becomes a jury question, decided, as we have seen, against him.
The doctrine of the last clear chance cannot be successfully invoked. That avenue of escape is not a one-way road. If Lee had such a chance, Brown had a like chance. Let us assume that Lee alone had this chance. Such a chance is built around the idea that notwithstanding the negligence of both parties, Lee, with ordinary care, had a clear chance to avoid the accident. In such circumstances as between Lee and Brown, Lee would be liable, but his negligence cannot be imputed to Waltrip, who, so far as this transaction is concerned, was not his master, was not jointly interested in the venture and who had in fact no interest therein at all.
[3, 4] It does not appear from the bills of exception that objections were made to instructions when given. Therefore they are the law of the case. It is true that exceptions were taken to them after the verdict and on a motion to set it aside, but they came too late. This, however, is unimportant for the instructions are free from reversible error.
[5, 6] The injury suffered was single and indivisible. Those responsible therefor, Lee and Brown, are jointly and severally liable, and since Brown is liable, his master, Oliver Farm Equipment Sales Company, is liable.
The judgment of the trial court should be affirmed, and it is so ordered.
Affirmed.