The opinion of the court was delivered by: MADDEN
This is an action by the Administrator for the wrongful death of Conrad A. Montrose, resulting from an automobile collision wherein it was alleged that the defendant, Melvin E. Nelson, was the driver of the automobile in which the decedent was a passenger, on June 14, 1946, at Norfolk, Virginia.
The case was tried by the court and a jury and at the conclusion of all of the testimony the court granted the defendant's motion and dismissed the case against the named defendant because the plaintiff had not sufficiently carried the burden of proof which was legally his to go to the jury.
The present application is for a new trial upon the grounds that such ruling was error and that the proofs, as submitted, at least required consideration of the fact questions by the jury.
The plaintiff proved that on June 14, 1946, about 4:15 A.M., five people were traveling upon Route 13, a dual highway with two lanes of traffic in each direction, outside Norfolk, Virginia, in a general westerly direction, in a Pontiac two-door Sedan (Exhibit P. 1). It was agreed at pre-trial conference that this automobile was owned by Catherine Greenhill Flemings. This car running at apparent high speed, according to the photographs and depositions in evidence, ran into and under a large, well-lighted truck and trailer proceeding in the same direction on the same highway.
The plaintiff-decedent, Conrad A. Montrose, was an occupant who was killed and suit was instituted against the defendant, Melvin E. Nelson, alleging him to be the driver at the time of the accident. Of the five people in the car only two lived; one the defendant, Melvin E. Nelson, and the other a Captain Roberts. Roberts was not produced as a witness at the trial but the court feels that no penalty should be suffered by or inference created against either party because counsel agreed that he was unable to throw any light upon the question.
Likewise comment may be made at this time that counsel on both sides have been most cooperative with the court both during the trial of the cause and during the argument and briefing of this problem.
The depositions of the truck driver and a Virginia police officer, called to the scene of the accident some time after the happening, were introduced into evidence and were read to the jury. They were to this effect: That after the collision (Which was a most violent one) the truck driver stopped his truck and trailer, got out and went to the rear where he found this automobile. Both doors were sort of sprung open. Three people were in the back seat and identified as (1) the plaintiff-decedent, Conrad A. Montrose, (2) Captain Roberts and (3) Ernestine Randolph. Montrose and Randolph were dead. Roberts was moving around trying to get out. In the front seat, hanging halfway out the door on the left hand (driver's) side of the car with his feet near the pedals of the car, was the defendant, Melvin E. Nelson. Hanging halfway out the door on the right hand side of the car, with her feet about under the heater, was the owner (but not a defendant) Catherin Greenhill Flemings.
When the police officer arrived he obtained defendant's identification from his Army officer's blouse and then attempted to question him as to who was driving the car at the time of the accident, but could receive no answer.
This in the main constituted the plaintiff's case on the subject and the court denied, at this point, a motion by defendant's counsel for nonsuit.
The defendant, Melvin E. Nelson, thereupon took the stand and told of these three Army officers leaving Fort Lee, Virginia, with the two women and going to Norfolk, spending the evening at a dance at Virginia Beach, returning to the home of Mrs. Flemings where the girls changed their dresses and then starting on the return trip to Camp Lee. During this time he had been driving. Three people were in the back; Captain Roberts; the plaintiff-decedent, Montrose, and Miss Randolph. He occupied the driver's seat and Mrs. Flemings (the owner) was on the right hand side of the front seat. He said that as he proceeded along Route 13 Mrs. Flemings and the three already named on the back seat were sleeping. He stopped the car at a stop street intersection and with that Mrs. Flemings awakened and questioned him as to whether he was tired. He replied in the affirmative. She then wanted to know if he wanted her to drive and he said he did because he was getting sleepy. With that and while the car remained stopped at the intersection she slid over the top of him and he slid underneath her and they exchanged positions on the front seat, she getting behind the wheel. He testified that she then proceeded to drive and he 'sort of curled up' on the front seat facing the left and went to sleep. This is the last that he can remember, according to his testimony, until he recovered consciousness in the hospital the next day. He described his injuries which were all down the right hand side of his body. The right side of the head, his right shoulder and arm, his right hip, and his right knee and ankle were injured; seven ribs were cracked or fractured at a point under the right arm.
He was cross-examined vigorously but his story, in the opinion of the court, remained absolutely unshaken that he was not driving the car. He admitted making a statement concerning the accident to Army investigators, dated June 19, 1946, (Exhibit P. 13.) Counsel for plaintiff argues that this statement contradicts his testimony, but with this the court cannot agree. He explained in his testimony that by reason of his injuries he could not remember all details at the time he gave the statement but that since the accident his mind has cleared considerably and, in fact, clears a little more each day. But he definitely remembers that he was not driving the car at the time of the accident. On this point the statement says:
'On our departure from the filling station we headed directly for Camp Lee, Virginia. At the intersection of the road that we were traveling with the road to Elizabeth City, North Carolina, I remember Catherine Flemings asking me if I wanted her to drive. I do not remember whether or not we changed places as that was the last time that I remember talking to her or it seems the last thing that I remember at all. The next thing that I remember was waking up in the Naval Hospital at Portsmouth, Virginia.'
The defendant was his only witness in this respect and the only rebuttal by plaintiff was the introduction into ...