Opinion
42543 Record No. 7583.
September 1, 1971
Present, I'Anson, Gordon, Harrison, Cochran and Harman, JJ.
(1) Automobiles — Uninsured Motorist — Incredible Testimony.
(2) Automobiles — Contributory Negligence — Failure to See.
1. Wolfe testified that he was traveling on highway when suddenly an unidentified automobile approached on his side of road and struck his Volkswagen, forcing it off the road and over embankment. Story not inherently incredible and it was not error to submit it to the jury.
2. Error not to submit to jury question of whether Wolfe was guilty of contributory negligence when he had visibility of one-half mile, yet did not see vehicle which struck him until it was only "about 20 feet" away in his lane of travel.
Error to a judgment of the Circuit Court of Botetourt County. Hon. Earl L. Abbott, judge presiding.
Reversed and remanded.
Richard C. Rakes (Gentry, Locke, Rakes Moore, on brief), for plaintiff in error.
James M. Roe, Jr. (Carter, Roe, Emick Honts, on brief), for defendant in error.
In an action for personal injuries, the plaintiff, Ray C. Wolfe, testified that he was traveling in a northerly direction on U.S. Route 220 when "suddenly an unidentified automobile appeared on [his] side of the road approaching [him]." According to the plaintiff the "unidentified automobile" struck his Volkswagen, forcing it off the right-hand side of the road and over an embankment. The jury returned a verdict in favor of the plaintiff against the unknown defendant, John Doe, and the latter appeals from the judgment entered on the verdict.
The defendant first contends that the plaintiff's testimony was inherently incredible and therefore insufficient to support a find-ing that the accident was caused by a John Doe vehicle or that the operator of that vehicle was negligent. We reject the contention. There was nothing incredible about the testimony of the plaintiff. If believed by the jury, as it was, the testimony, when considered with evidence of the surrounding circumstances, was sufficient to establish that the accident resulted from the actions of an unknown operator and that it occurred in the plaintiff's lane of travel. Thus, the plaintiff's evidence made out a prima facie case of negligence against the defendant. That prima facie case was not rebutted and supports the jury's verdict.
The defendant next contends that the trial court erred in ruling, as a matter of law, that the plaintiff was free of contributory negligence. We agree with the defendant. The plaintiff testified that as he approached the scene where the accident occurred, he had visibility of approximately one-half mile and yet he did not see the vehicle which struck him until it was only "about twenty feet" away in his lane of travel. The question whether the plaintiff should have sooner seen the vehicle and should have taken evasive action to avoid the collision was one for the jury to decide.
The judgment of the trial court will be reversed and the case remanded for a new trial.
Reversed and remanded.