Opinion
45873 Record No. 860843
January 13, 1989
Present: Carrico, C.J., Poff, Compton, Stephenson, Russell, Thomas, and Whiting, JJ.
Justice Poff participated in the hearing and decision of this case prior to the effective date of his retirement on December 3l, 1988.
Judgment in a negligence suit is reversed and the suit remanded for a new trial because the trial court granted a jury instruction which failed to take into account both versions of what happened in an automobile accident and which was therefore erroneous and prejudicial.
Practice and Procedure — Jury Instructions — Prejudicial — Torts — Negligence — Safe Operation of Another Vehicle — Right to Assume
Plaintiff was injured when the automobile in which she was riding was struck from behind by a truck. There was conflicting testimony by the two drivers concerning the cause of the accident. A jury trial resulted in a verdict in favor of defendants. Plaintiff appeals, contending that the trial court erred in granting an instruction which stated that the driver of a vehicle has a "right to assume" that the driver of another vehicle will operate it in a lawful manner until he realizes or should realize that the other driver is not going to do so.
1. It was error to grant this instruction because an instruction on what a party has a right to assume must take account of the evidence and this instruction took account of only defendant's testimony while ignoring that of the driver of the other vehicle.
2. Since the jury had the right to believe either of the versions of what happened in the accident, it was error to grant an instruction which failed to take both versions of the accident into account and granting that instruction was prejudicial.
Appeal from a judgment of the Circuit Court of Albemarle County. Hon. E. Gerald Tremblay, judge presiding.
Reversed and remanded.
William G. Barkley (Pickford Barkley, on briefs), for appellant.
Thomas E. Albro (Christine Thomson; Smith, Taggart, Gibson Albro, on brief), for appellees.
On May 27, 1984, Jacqueline M. Russell was injured when the automobile in which she was a passenger was struck from behind by a truck owned by Branch Motor Express, Inc., and operated by its employee, William W. Shumate. A jury trial resulted in a verdict in favor of Branch and Shumate, upon which the trial court entered judgment. We granted Mrs. Russell an appeal.
The evidence shows that the accident occurred on a rainy morning on Route 29 south of Charlottesville. Mrs. Russell was riding in an automobile operated by her husband, George E. Russell, Jr. According to Mr. Russell, he was driving in the right-hand lane of the two southbound lanes when a squirrel appeared in front of him. He slowed to a speed of approximately 45 miles per hour and moved into the left-hand lane to avoid the squirrel. Then, when he "started back into the right-hand lane," his vehicle was struck from behind by Shumate's truck. The Russell vehicle was propelled off the left side of the roadway into a tree.
According to Shumate, he was traveling "around the speed limit" of 55 miles per hour when he saw both the squirrel and the Russell vehicle ahead of him. He saw the brake lights "come on" the Russell vehicle, and he observed the vehicle veer to its left. Shumate also moved into the left lane to avoid the squirrel, and when the Russell vehicle returned to the right lane, Shumate decided to pass. When Shumate's truck was "a car length or so" from the Russell vehicle, Russell "darted back to the left . . . in front" of the truck. Shumate "couldn't dodge [in] either direction" and "hit [Russell] square in the rear." Shumate testified that Russell did not signal "any one of these three lane changes."
The dispositive question on appeal is whether the trial court erred in granting Instruction No. 26. Tendered by Branch and Shumate, Instruction No. 26 reads as follows:
The driver of a vehicle has a right to assume that the driver of another vehicle will operate it in a lawful manner until he realizes, or in the exercise of ordinary care should realize, that the other driver is not going to do so.
We think it was error to grant Instruction No. 26. "An instruction on what [a party has] a right to assume must take account of the evidence." Mawyer v. Thomas, 199 Va. 897, 902, 103 S.E.2d 217, 220-21 (1958); see also Southers v. Price, 211 Va. 469, 474-75, 178 S.E.2d 685, 689 (1971). Here, the instruction in dispute takes account of only a portion of the evidence viz., Shumate's testimony that the Russell vehicle had returned to the right-hand lane before he, Shumate, undertook to pass the vehicle. The instruction ignores the positive testimony of Russell that he had only started to return to the right-hand lane when his vehicle was struck.
Had the jury believed, as it had the right to do, that Russell had only started to return to the right-hand lane when the accident occurred, then the jury would not have been justified in according Shumate the benefit of the assumption outlined in Instruction No. 26. Only if the jury believed Shumate, rather than Russell, would it have been justified in giving Shumate the benefit of the assumption. Yet, the instruction failed to take Russell's version of the accident into account. Hence, the granting of the instruction was both erroneous and prejudicial.
For this reason, the judgment of the trial court will be reversed and the case remanded for a new trial without any instruction on the right to assume. Reversed and remanded.
Mrs. Russell also complains that the trial judge improperly questioned the investigating state trooper concerning "his opinion of how and where the accident occurred." Because this incident is not likely to recur upon remand, we will not consider the complaint.