Garst v. Obenchain

• Decision Date: 17 January 1955
• Docket Number: No. 4289,4289
• Citation: 196 Va. 664,85 S.E.2d 207
• Parties: JOHN ALLEN GARST v. MARTHA ELIZABETH OBENCHAIN, ADMINISTRATRIX OF THE ESTATE OF HUBERT LEE OBENCHAIN, DECEASED. Record
• Court: Virginia Supreme Court

Page 207

85 S.E.2d 207

196 Va. 664

JOHN ALLEN GARST v. MARTHA ELIZABETH OBENCHAIN, ADMINISTRATRIX OF THE ESTATE OF HUBERT LEE OBENCHAIN, DECEASED.

Record No. 4289.

Supreme Court of Appeals of Virginia

January 17, 1955.

Carl R. Langhammer, M. S. McClung and J. B. Browder, for the plaintiff in error.

Kime & Jolly and G. J. Walpert, for the defendant in error.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

This action was instituted by Martha Elizabeth Obenchain, administratrix of the estate of Hubert Lee Obenchain, referred to as plaintiff, against John Allen Garst, referred to as defendant, to recover for the death of plaintiff's decedent which resulted from injuries sustained while he was riding as a guest passenger in an automobile owned and operated by the defendant. A jury trial resulted in a verdict and judgment in the sum of $21,000.00 for the plaintiff, to which judgment we granted this writ of error.

The issues for our determination are: 1. whether the evidence is sufficient to convict the defendant of gross negligence; and, 2. whether the court erred in granting and refusing certain instructions. The first issue requires a review of the evidence at some length.

Both the defendant and the plaintiff's decedent were approximately 30 years old at the time of the accident and lived in the city of Roanoke where they grew up together. Shortly before midnight on November 1, 1952, the decedent appeared at a service station in Roanoke where the defendant was on duty as manager and suggested that they go to a party in Lynchburg. The defendant agreed and after closing the service station they proceeded east along U.S. Highway 460 in the defendant's 1952 Ford automobile, a two door sedan, and upon arriving at Bedford they picked up James Donald Lovell, a sailor who was hitchhiking to Norfolk. As they continued toward Lynchburg the defendant and decedent occupied the front seat and Lovell rode alone on the back seat. Approximately three miles east of Bedford the road was winding and there was a series of three curves; the first curved to the left, the second eight degrees to the right and the third twenty degrees to the left. Along this section of the highway the hard surface was twenty feet wide with graveled shoulders and at the time of the accident the road was dry. The first curve, which was approximately 300 yards from the third curve, was marked by a directional arrow and a sign reading, 'MAXIMUM SAFE SPEED 35 MILES PER HOUR'; the second was unmarked and the third was marked by a directional arrow.

The right wheels of the car left the hard surface of the road at the beginning of the third curve, and after traveling about 100 feet partly on and partly off the hard surface the vehicle left the road completely and ran 98 feet, knocking down the directional arrow and a fence post, before striking a sycamore tree, which stood approximately 25 feet from the edge of the hard surface, and careened 20 feet straight downward into a gully or ravine. As a result of the accident the plaintiff's decedent was killed and the other two occupants were injured. The State Trooper who investigated the accident soon after it occurred testified that the car's motor was found approximately 50 feet 'back towards Bedford' from the tree and that the car 'was a complete loss, torn all to pieces.'

The testimony of the two surviving eye-witnesses, the defendant and Lovell, is conflicting. In addition to testifying that he saw the maximum safe speed sign and the directional arrows above mentioned, Lovell testified that about 500 yards west of the accident there were two road-under-construction signs, one of which read, 'DRIVE CAREFULLY.' It is admitted, however, that no part of the highway upon which the accident occurred was under construction. Lovell further testified that as they passed the road-under-construction signs the defendant was driving 60 to 65 miles per hour and that he continued to drive at that speed until the accident occurred; that 'when we started into the winding road' the decedent 'asked the driver to slow it down a little bit for the curves, and he didn't seem to slow down any' or make any reply to the decedent. He also testified that he saw no other car or car lights at the scene of the accident; that the car had not left the hard surface of the road on any previous curves; that he made no protest to the defendant and that although he was sleepy he was 'too scared to sleep.'

The defendant testified that he was driving between 35 and 40 miles per hour and that of the signs mentioned the only one he recalled seeing was the arrow at the third curve. He further testified that as he approached that curve he saw the bright lights of an oncoming car and when he realized it was over on his side of the road he cut to the right to avoid it and lost control of the car when he ran off the hard surface onto the loose gravel of the shoulder. He also testified he had not been over this road in four years, and that no one made any complaint or comment to him about his driving.

Since the gross negligence rule was adopted in Boggs v. Plybon, 157 Va. 30, 160 S.E. 77, (1931), it has been codified (Code, § 8-646.1), and applied in many cases. In some of these cases it was held that the evidence of gross negligence was insufficient to submit the question to the jury, while in others it was held that gross negligence was established, or that the evidence was sufficient to present the question to the jury. Most of these cases were listed by Chief Justice Hudgins in Alspaugh v. Diggs, 195 Va. 1, 6, 7, 77 S.E. (2d) 362.

In the recent case of Kennedy v. McElroy, 195 Va. 1078, 1081, 81 S.E. (2d) 436, we said: 'Gross negligence is that degree of negligence which shows an utter disregard of prudence, amounting to complete neglect of the safety of another; such heedless and reckless disregard of his rights as to be shocking to reasonable men. Crabtree v. Dingus, 194 Va. 615, 618, 74 S.E. (2d) 54, 56; Reel v. Spencer, 187 Va. 530, 535, 47 S.E. (2d) 359, 361.

'Ordinary negligence and gross negligence differ in degree, while both differ in kind from willful and intentional conduct which is known, or ought to be known, to have a tendency to injure. Alspaugh v. Diggs, 195 Va. 1, 5, 77 S.E. (2d) 362, 364.'

Gross negligence, like all other kinds of negligence, is ordinarily a question of fact for the jury and only becomes a question of law for the court when, under the applicable rules of negligence, reasonable men should not differ as to the proper conclusion to be drawn from the evidence. However, when a party comes into this court with a jury's verdict, approved by the judgment of a trial court, we accept as true all of his credible evidence and all fair inferences which may be drawn therefrom, and all evidence in conflict therewith is disregarded. Kennedy v. McElroy, supra; Alspaugh v. Diggs, supra; McDowell v. Dye, 193 Va. 390, 69 S.E. (2d) 459; Sibley v. Slayton, 193 Va. 470, 69 S.E. (2d) 466; Carr v. Patram, 193 Va. 604, 70 S.E. (2d) 308; W.O.W. Life Ins. Soc. v. Grant, 185 Va. 288, 38 S.E. (2d) 450.

When these principles are applied to the evidence in this case, it was clearly a question for the jury to decide, under proper instructions, whether the accident resulted from the defendant's being forced off the road by an oncoming car or whether the accident resulted from excessive speed and the defendant's failure to exercise proper care under the circumstances. Thus, when the evidence is viewed in the light most favorable to the plaintiff, it is sufficient to warrant the jury in finding that the defendant showed an utter disregard of prudence, amounting to complete neglect of the safety of his guests when he drove along a winding road and attempted to negotiate a twenty degree curve at an excessive and dangerous speed after having been warned to slow down for the curves; failed to see and heed warning signs; and ran off the road and against a tree at a speed sufficient to demolish the car and dislodge its motor which was found 50 feet from the tree.

The defendant relies on Richter v. Seawell, 183 Va. 379, 32 S.E. (2d) 62, a case in which the motor and radiator were thrown clear of the body of a car, all the occupants of the car were killed and there were no eye-witnesses. It was held that while the physical facts justified the inference that the car was proceeding at a considerable speed, there was no indication that the speed was in excess of the statutory maximum of fifty-five miles per hour or that such maximum speed under the existing conditions, where the road was 42 feet wide, straight and level, would have been grossly negligent. Here the road was 20 feet wide and winding and there was testimony that the defendant was driving 60 to 65 miles per hour.

Many other cases in which it was held that the evidence was insufficient to establish gross negligence are cited and relied on by the defendant, but they are equally distinguishable from ...