Ring v. Poelman

397 S.E.2d 824, 240 Va. 323, 1990 Va. LEXIS 150
CourtSupreme Court of Virginia
DecidedNovember 9, 1990
DocketRecord 900247
StatusPublished
Cited by31 cases

This text of 397 S.E.2d 824 (Ring v. Poelman) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ring v. Poelman, 397 S.E.2d 824, 240 Va. 323, 1990 Va. LEXIS 150 (Va. 1990).

Opinions

CHIEF JUSTICE CARRICO

delivered the opinion of the Court.

This is a plaintiffs appeal from a judgment for the defendants in a case growing out of an automobile collision. We must determine, first, whether the trial court erred in granting an uninsured motorist, John Doe, summary judgment and, second, whether the trial court erred in granting an instruction on contributory negligence.

[325]*325The transcript of evidence at trial discloses no dispute in the facts relevant to the issues on appeal. The collision occurred August 5, 1987 on Hershberger Road near its intersection with Fern-cliff Avenue in the city of Roanoke. At that time, Hershberger Road contained three westbound lanes. The right lane was closed to traffic by construction barricades. The middle lane carried traffic through the signal light at the intersection. As depicted by the investigating officer’s diagram, a third lane accommodated traffic turning left.

With her daughter as a passenger, Cynthia M. Ring was driving in the left turn lane at a distance of “two to four car lengths” behind traffic moving ahead of her. Other traffic in her lane was stopped at the traffic signal. Ring testified that her speed was 25 miles per hour or less.

James S. Poelman was preparing to leave a parking lot located approximately 150 feet east of the intersection and on the north side of Hershberger Road, cross the three westbound lanes, turn left, and travel east on Hershberger Road. Traffic in the middle westbound lane was stopped in a line behind the traffic signal.

One of the motorists in the middle lane, identified at trial as John Doe, stopped his pickup truck at a point that left an opening in the line of traffic opposite Poelman’s car. Doe waved his hand in “a come-on manner,” a gesture Poelman interpreted as meaning that Doe “was not going to pull out in front of me.” Poelman looked in both directions, saw no traffic moving east or west on Hershberger Road, drove across the right westbound lane, and “hesitated” in the middle lane in front of Doe. Poelman’s view to the east was “totally blocked” by Doe’s truck, so he proceeded “very slowly” and “very slightly” into the left turn lane. Poelman testified that Ring’s car “appeared” and that “[t]he appearance and the impact were at about the same point.”

Ring testified that she “did not see [Poelman’s] car” because “[t]here was no way that you could see the car coming out.” “All of a sudden,” she said, “the car was there in front of us, and we just crashed into each other.” Her daughter’s testimony was generally the same.

The officer who investigated the collision testified that the front of Poelman’s car had struck the right front fender of Ring’s car at a point in the left turn lane, that the damage “wasn’t extensive,” that neither vehicle had been moved by the impact, and that he had found no skidmarks approaching the point of impact.

[326]*326Ring filed an amended motion for judgment against Poelman and Doe, claiming $225,000 in damages on account of personal injuries sustained in the collision. On November 2, 1989, the trial court granted Doe’s motion to strike the evidence against him. The trial court granted instructions on primary negligence submitted by Ring and, over Ring’s objection, an instruction on contributory negligence. The jury returned its verdict for Poelman, and the trial court entered final judgment for Poelman and Doe on November 27, 1989. We awarded Ring an appeal from that judgment.

Ring argues on appeal that “there was sufficient evidence of John Doe’s negligence to create a jury issue” and that there was insufficient evidence to support a jury instruction on contributory negligence. We consider first whether the trial court erred in granting John Doe summary judgment.

John Doe relies upon Nolde Bros. v. Wray, 221 Va. 25, 266 S.E.2d 882 (1980). In that case, we were required to decide, as a question of first impression, whether a motorist was guilty of actionable negligence when he stopped and signalled another motorist to move in front of him. We acknowledged with approval the principle articulated by Justice Cardozo in Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922), that “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” See also Cofield v. Nuckles, 239 Va. 186, 192, 387 S.E.2d 493, 496 (1990). Explicating that principle, we announced the rule that “a jury question concerning a driver’s negligence in giving such a signal is not presented where the signal could not reasonably have been interpreted as a signal to proceed across lanes of oncoming traffic.” 221 Va. at 28, 266 S.E.2d at 884.

Applying that rule and reversing a judgment for the plaintiff, we held that the plaintiff could not reasonably have made such an interpretation because he “could see that . . . [the defendant motorist] was not in a position to determine whether [those] traffic lanes . . . were free of vehicles.” Id. at 29, 266 S.E.2d at 884. We agree with Ring that, in that factual particular, Nolde Bros. is distinguishable from the case at bar. John Doe was so positioned that the jury reasonably could find that he could have and should have seen the danger of traffic approaching from the rear in the left turn lane. Based upon that finding, the jury could have concluded that Poelman, seeing John Doe in such a [327]*327position, reasonably could have interpreted the “come-on” gesture as a signal to proceed into the left turn lane and, hence, that John Doe was guilty of negligence.

As noted by the trial court in sustaining the motion to strike, however, “[o]n five occasions [Poelman] stated that he was not relying on that hand signal to indicate that he could enter Mrs. Ring’s lane of traffic; that the signal simply indicated to him that John Doe was going to yield the right-of-way to him.” Consequently, the record shows that John Doe’s conduct, whether negligent or not, was not the proximate cause of the collision, and we will uphold the trial court’s decision to grant John Doe summary judgment. See Kemp v. Armstrong, 40 Md. App. 542, 548-49, 392 A.2d 1161, 1164-65 (1978) (cited in Nolde Bros.); see also Dace v. Gilbert, 96 Ill. App.3d 199, 201, 421 N.E.2d 377, 378 (1981); Gamet v. Jenks, 38 Mich. App. 719, 725, 197 N.W.2d 160, 164 (1972).

We consider now Ring’s contention that “no evidence supports the conclusion that [she] was contributorily negligent” and that the trial court erred by granting a jury instruction on that subject.

“[Bjefore either party is entitled to an instruction on negligence or contributory negligence, as the case may be, there must be more than a scintilla of evidence introduced on the subject.” Yeary v. Holbrook, 171 Va. 266, 287-88, 198 S.E. 441, 451 (1938). In defense of the jury instruction, Poelman argues that the evidence is sufficient to support findings of several species of contributory negligence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Terry v. Irish Fleet, Inc.
Supreme Court of Virginia, 2018
Terrell v. Central Washington Asphalt, Inc.
168 F. Supp. 3d 1302 (D. Nevada, 2016)
Halcomb v. Smith
737 S.E.2d 286 (West Virginia Supreme Court, 2012)
Khadim v. Laboratory Corp. of America
838 F. Supp. 2d 448 (W.D. Virginia, 2011)
Bosworth v. Vornado Realty, L.P.
83 Va. Cir. 549 (Fairfax County Circuit Court, 2010)
Kellermann v. McDonough
684 S.E.2d 786 (Supreme Court of Virginia, 2009)
Mann v. Producer's Chemical Co.
827 N.E.2d 883 (Appellate Court of Illinois, 2005)
Schlimmer v. Poverty Hunt Club
597 S.E.2d 43 (Supreme Court of Virginia, 2004)
Rose v. Jaques
597 S.E.2d 64 (Supreme Court of Virginia, 2004)
Didato v. Strehler
554 S.E.2d 42 (Supreme Court of Virginia, 2001)
Ponirakis v. Choi
546 S.E.2d 707 (Supreme Court of Virginia, 2001)
Boucher v. Grant
74 F. Supp. 2d 444 (D. New Jersey, 1999)
Gravitt v. Ward
518 S.E.2d 631 (Supreme Court of Virginia, 1999)
Essex Insurance v. Town of Front Royal
49 Va. Cir. 361 (Warren County Circuit Court, 1999)
Commonwealth v. Park
49 Va. Cir. 239 (Fairfax County Circuit Court, 1999)
Church v. Commonwealth
48 Va. Cir. 376 (Richmond County Circuit Court, 1999)
Rosen v. Greifenberger
513 S.E.2d 861 (Supreme Court of Virginia, 1999)
Roe v. Spotsylvania Mall Co
Fourth Circuit, 1998

Cite This Page — Counsel Stack

Bluebook (online)
397 S.E.2d 824, 240 Va. 323, 1990 Va. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ring-v-poelman-va-1990.