Bowers v. May

357 S.E.2d 29, 233 Va. 411, 3 Va. Law Rep. 2661, 1987 Va. LEXIS 208

• Court: Supreme Court of Virginia
• Decided: June 12, 1987
• Docket: Record 840432
• Status: Published

Opinions

CARRICO, C.J.,

delivered the opinion of the Court.

In this personal injury case, the question for decision is whether the trial court erred in instructing the jury on the issue of contributory negligence. The question stems from the trial of an action brought by Charles Junior Bowers, Sr., the plaintiff, against Matthew Kendall May, the defendant. The trial resulted in a verdict in favor of the defendant, upon which the trial court entered judgment.

The automobile accident in which the plaintiff suffered his injuries occurred about 3:10 p.m. on July 26, 1982, in the inside westbound lane of U.S. Route 50 in Fairfax County. Route 50 in the area of the accident is a four-lane divided highway with a slight upgrade for westbound traffic.

At the point of collision, a cross-over in the median strip permits motorists eastbound on Route 50 to make a left turn onto a side road which intersects Route 50 from the north. Motorists southbound on the side road may use the cross-over to turn left into the eastbound lanes of Route 50. Motorists westbound on Route 50, however, may make neither a left turn nor a U-turn.

The plaintiff was operating a Ford Granada automobile westbound on Route 50 behind a Lincoln automobile, with out-of-state license plates, operated by Roy S. Duhart. The defendant, operating a “bucket” truck owned by the Fairfax County Park Authority, was following the plaintiff.

Duhart, planning to make a U-turn through the cross-over, turned on his left-turn signal and stopped in the inside westbound lane of travel. According to the plaintiff, he observed Duhart “tryin’ to stop or ... go one way or the other.” The plaintiff “got [about ten feet] behind [Duhart and] wasn’t goin’ more than 5 to 10 miles per hour.” Then, when Duhart stopped, the plaintiff stopped from one to three feet behind him and was struck in the rear by the defendant. The impact forced the front of the plaintiffs car into the rear of Duhart’s vehicle.

According to the defendant, he was proceeding behind the plaintiff in the inside westbound lane of Route 50 at a speed of approximately 35 miles per hour. The defendant was 75 to 100 feet from the plaintiff when he observed Duhart give a left-turn signal and stop. The plaintiff, “in turn, slammed on his brakes.” When the defendant tried to apply his brakes, the pedal “went almost to the floor,” and he had to “pump” twice before the brakes “locked up.” The defendant had slowed to approximately three to five miles per hour when he struck the rear of the plaintiffs car. All three vehicles suffered only slight damage.

On appeal, the plaintiff contends that he “did nothing which could lead to even an inference of negligence on his part.” The plaintiff argues that he was merely following Duhart when the latter slowed and then suddenly stopped, planning to make an illegal U-turn. Duharf s actions, the plaintiff claims, forced him to stop in an effort to avoid a collision.

The plaintiff acknowledges that Code § 46.1-248, cited by the defendant, prohibits stopping on a highway in a manner to impede or render dangerous the use of the highway by others, except in an emergency. The plaintiff points out, however, that in Doss v. Rader, 187 Va. 231, 46 S.E.2d 434 (1948), this Court said that “[s] topping momentarily is frequently a necessary incident to travel on the highway. [Code § 46.1-248] was not intended to require a motorist to refrain from stopping when going ahead would bring his car into collision with another vehicle, or some other object.” Id. at 238, 46 S.E.2d at 438.

But, the plaintiff says, even if he were negligent in stopping on the highway, the manner in which he stopped was not a proximate cause of the accident. His vehicle was at a complete stop when it was struck, the plaintiff maintains, and, hence, any negligence on his part was remote.

The defendant argues on the other hand that the evidence showed the plaintiff stopped suddenly and without warning in front of him. The defendant says that while the plaintiff “cannot be faulted for stopping his vehicle so as to avoid a collision with Duhart,” the plaintiff should have recognized the possibility Duhart might stop suddenly and should have stayed a safe distance behind him. The jury could have found the plaintiff negligent for failing to maintain a safe distance, the defendant concludes, and also could have found that this failure was a proximate cause of the accident.

A party is entitled to have the jury instructed on his theory of the case if the instructions he proffers correctly propound the law and are supported by evidence. Trucking Company v. Flood, 203 Va. 934, 937, 128 S.E.2d 437, 439-40 (1962). Here, the question is whether the instructions on contributory negligence were supported by evidence. We think they were. The defendant testified that the plaintiff “slammed on his brakes” and stopped suddenly in front of him. Explaining the plaintiffs actions, the defendant said “it was just like a sudden, you know, sudden jam of the brakes there. He wasn’t actually slowin’, you know, slowing down.”

From the defendant’s testimony, the jury could have inferred that had the plaintiff maintained a safe distance between his car and Duhart’s, he could have avoided stopping suddenly in front of the defendant. And we agree with the defendant’s observation that “[i]f in fact there was some negligence on the part of [the plaintiff] for making an unnecessary sudden stop . . . then the causal connection between [this act] of negligence and the accident [was] intrinsically [a question] for the jury.”

Accordingly, we will affirm the judgment of the trial court.

Affirmed.