Arrington v. Graham, 5392

• Decision Date: 05 March 1962
• Docket Number: No. 5392,5392
• Citation: 203 Va. 310,124 S.E.2d 199
• Parties: GEORGE W. ARRINGTON, ADMINISTRATOR, ETC. v. LESLIE L. GRAHAM, ADMINISTRATOR, ETC. Record
• Court: Virginia Supreme Court

Page 199

124 S.E.2d 199

203 Va. 310

GEORGE W. ARRINGTON, ADMINISTRATOR, ETC. v. LESLIE L. GRAHAM, ADMINISTRATOR, ETC.

Record No. 5392.

Supreme Court of Appeals of Virginia

March 5, 1962.

James C. Turk and John N. Dalton (Dalton, Poff & Turk, on brief), for the plaintiff in error.

Kenneth I. Devore (Snidow & Devore, on brief), for the defendant in error.

JUDGE: SPRATLEY

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

Leslie L. Graham, administrator of the estate of William D. Graham, deceased, instituted this action by filing a motion for judgment against George W. Arrington, administrator of the estate of Willard W. Aliff, deceased, seeking to recover damages for the alleged wrongful death of Graham, while riding as a guest-passenger in an automobile operated by Aliff.

At the conclusion of plaintiff's evidence, and also at the conclusion of all the evidence, the defendant moved to strike the evidence of the plaintiff, and enter summary judgment for the defendant upon the grounds that plaintiff's decedent was, as a matter of law, guilty of contributory negligence, and of assumption of risk. The motion was overruled, and the case was submitted to the jury. The jury returned a verdict in favor of plaintiff for $10,000.00.

The defendant moved to set the verdict aside and to enter final judgment in his favor upon the grounds that it was contrary to the law and the evidence, without evidence to support it; for error in giving and refusing certain instructions; and for error in the admission and rejection of certain evidence. The motion was overruled; judgment was entered on the verdict; and we granted this writ of error.

The evidence is without material conflict and may be summarized as follows:

On August 17, 1960, at approximately 2:35 o'clock p.m., William D. Graham, while riding in a 1955 Ford automobile sedan, operated by Willard W. Aliff, was killed when the automobile struck a concrete bridge abutment on U.S. Route No. 11. The accident occurred approximately 1/2 mile east of Shawsville, in Montgomery county. There Route No. 11 is a 4-lane, divided highway, two lanes running east and two lanes running west with black top surface. The weather was clear and the road dry. Only Graham and Aliff were in the automobile, and both were instantly killed. The automobile was bound westerly, and the collision occurred as a right-hand curve ended at a bridge over Roanoke river. East of the curve, the highway runs straight towards the east for one mile.

About midday of August 17, 1960, Aliff drove his 1955 Ford automobile to the residence of Delmar Cline in Montgomery county. He had been drinking prior to his arrival, and was said to be not in 'too good shape.' He requested permission, and was allowed to bring into the Cline residence a 4/5 quart bottle of gin, 1/3 full, and he and Homer Cline each took a drink therefrom. Aliff then asked Homer Cline to go riding with him. The two got in Aliff's Ford automobile and rode by the gasoline service station of Robert Starkey on Route No. 11 at Elliston, Virginia, one or more times, and then drove into the station to get some air in a front tire.

Three brothers of Robert Starkey, Hoover, Charles, and Nelson Ray, and William D. Graham were at that station. There Aliff gave Charles Starkey a drink from his bottle of gin. A short while afterwards, Graham got in the automobile with Aliff and Cline, and Aliff drove about 500 yards from the station, stopped the car off the highway, and Aliff and Graham there drank the remainder of gin in the bottle and threw the bottle away. Aliff then drove them back to the service station. While there, Aliff drove in and out of the station several times, ran over a concrete curb, and backed into a light pole. Robert Starkey, the operator of the service station, said that when Aliff started on the 500-yard trip, 'he went over on the other side of the road -- he went on the wrong side of the road then,' and when he returned from that trip, he drove up to the station 'pretty fast,' and was 'spinning' the wheels of his automobile around the driveway until he, Starkey, protested. He said that the operation of the car by Aliff was in the presence of Graham and most of the group of persons mentioned.

Some of the group said they would like to go to the State A.B.C. store in Christiansburg, and get something more to drink. Aliff asked Homer Cline to go with them. Cline told Aliff, in the presence of Graham, 'You have been drinking quite a bit, and if I go, I'll drive. ' Cline, then with Aliff, Graham, Hoover Starkey and Nelson Ray Starkey, got in the car, and Cline drove them to Christiansburg. Aliff there got out of the car, went to the A.B.C. store, and purchased two bottles of gin. On the return trip, Aliff, Graham and the two Starkeys drank all of one bottle. Cline did not drink any of it. When they reached the service station around 1:30 p.m., everyone got out of the car except Aliff. Aliff asked for and obtained a 'coke' to mix with a drink.

Shortly thereafter, Cline suggested he would like to go home. Aliff told him to get in the car. Cline again refused to do so unless Aliff would let him drive. Aliff declined to do so. Cline testified that, in the presence of Graham and some of the Starkey group, he said, 'I wouldn't ride with him the way he was driving. We were going down the road with it wide open, and he said the car always sticks on 30;' that Aliff hit the speedometer with his fist and it went up [203 Va. 313] to 120 miles an hour and stayed there; and that Aliff laughed and said, 'What do you think of that? ' He further said that when he made the above statement, Graham was 'Kinda laughing and smiling while leaning on the left side of the car. ' When some question was raised as to the condition of the speedometer, Cline said that he was also judging speed 'by the telephone...