Atwell v. Watson

• Decision Date: 02 December 1963
• Docket Number: 5643,Nos. 5642,s. 5642
• Citation: 204 Va. 624,133 S.E.2d 552
• Court: Virginia Supreme Court
• Parties: FRED LEE ATWELL v. WARREN H. WATSON. WILLIAM H. GODWIN v. FRED LEE ATWELL. Record

Page 552

133 S.E.2d 552

204 Va. 624

FRED LEE ATWELL v. WARREN H. WATSON.

WILLIAM H. GODWIN v. FRED LEE ATWELL.

Record Nos. 5642, 5643.

Supreme Court of Appeals of Virginia

December 2, 1963.

Edward A. Marks, Jr. (Frank H. Pitchford; Sands, Anderson Marks & Clarke; Pitchford & Sarfan, on brief), for plaintiff in error, Fred Lee Atwell, Record No. 5642; for defendant in error, Fred Lee Atwell, Record No. 5643.

W. Worth Martin and Phillips M. Dowding (Martin & Dowding, on brief), for defendant in error, Warren H. Watson, Record No. 5642.

R. V. Richardson (James, Richardson & James, on brief), for plaintiff in error, William H. Godwin, Record No. 5643.

JUDGE: WHITTLE

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

Fred Lee Atwell was injured in an automobile accident while riding as a guest passenger in a car owned and operated by William H. Godwin. The Godwin car was in collision with a truck operated by Warren H. Watson and owned by Benjamin H. Richardson. Atwell sued Godwin, Watson and Richardson, alleging gross negligence on the part of Godwin and simple negligence on the part of Watson and Richardson.

The case was tried on October 18, 1962. At the conclusion of plaintiff's evidence the court struck the evidence as to defendant Richardson on the ground that no agency had been proven, and he is no longer involved. The case proceeded to trial against Godwin and Watson. The jury returned a verdict in favor of defendant Watson and against defendant Godwin in the sum of 15,000.00.

Godwin moved to set aside the verdict in favor of Atwell on the grounds that it was contrary to the law and the evidence and was without evidence to support it, that the court erred in refusing to strike the evidence as to him and that the court erred in granting and refusing certain instructions.

Plaintiff Atwell also moved to set aside the verdict in favor of defendant Watson for the reason that it was contrary to the law and the evidence and without evidence to support it and for misdirection of the jury. Whereupon, the court overruled both motions and entered judgment on the verdicts.

To all intents and purposes, two cases are here involved. We granted Godwin a writ of error in Atwell's case against him (Record 5643) and we also granted Atwell a writ of error in his case against Watson (Record 5642).

In stating the case most favorably to the prevailing party Atwell, it is disclosed that the accident happened at approximately 10:00 at night on Shell Road in the city of Hampton. Hurricane Donna was proceeding into the territory at the time. It was drizzling and the wind was blowing hard. Defendant Godwin in response to a call from plaintiff Atwell had picked Atwell up near his home in Hampton and had driven him to Newport News to call on a friend. He was driving him back to his home when the accident occurred. The fact that Atwell was a 'guest without payment' as contemplated by Section 8-646.1 Va. Code 1950 is not disputed.

Shell Road runs east and west, is twenty feet wide and consists of two traffic lanes paved with black top. Courtland Street is an unpaved street, fourteen feet wide and only one-half block long. Courtland Street intersects the southerly side of Shell Road and does not extend across it. Godwin was driving east on Shell Road at what Atwell describes as 'the normal speed' when the truck operated by Watson in traveling west on Shell Road turned left across the center of the road into the path of the Godwin car. He was attempting to turn south into Courtland Street. There was another car headed west on Shell Road ahead of the Watson truck when Watson began his turn.

Godwin testified that he saw several vehicles approaching, but that when he first saw the Watson truck it was just pulling out across the center of the road in front of him. At this time he was about one-half the length of the courtroom (28 feet) away from the truck. He immediately applied his brakes and his car skidded slightly to the left so that the right rear of his car struck the right rear of the truck. The right door of the car opened and Atwell was thrown out of the car into a ditch on the south side of the road, receiving the injuries complained of.

Atwell testified that there was a car ahead of the Watson truck; that the truck was 'very close' to the car; that when the Watson truck turned out it was 'maybe a distance of a car' ahead of the Godwin car; that he immediately said 'Watch out' and that he believed that Godwin was already putting on brakes when he called the warning.

There was testimony by three colored boys, one of them being the son of defendant Watson, that they had been standing in the rain for half an hour, under a street light, at the corner of Maryland Avenue some 300 feet to the west of Courtland Street. They said that they saw the Watson truck turn into Shell Road from Chesterfield Road, proceed west on Shell Road to Courtland Street, come to a full stop and then turn left into Courtland Street. They all testified that the Godwin car passed them at an excessive speed.

While there are four assignments of error stressed by Godwin we are of the opinion that the case turns upon the assignment that the court failed to strike the evidence of the plaintiff as it regarded defendant Godwin.

Atwell testified that he was forty years old and had worked for a ship building company in Newport News for twenty years and that he was in full possession of his faculties at the time of the accident. On direct examination he testified that he had called Godwin and asked him to take him to Newport News. He described the trip in detail. When questioned as to the speed of the Godwin car, he stated 'he was going the normal speed and I was looking at the -- the trees blowing'. His attorney asked him if he had warned Godwin about something and he replied 'As we were approaching -- I forget the name of the street, I said watch out. Here is this truck and he (Godwin) immediately throwed on brakes.'

He further states that 'it was done in a second. The car when he throwed on brakes went up (indicating) and when it come down, the next thing I knew I was rolling into a ditch. * * *'

On cross-examination Atwell stated he had ridden with Godwin a great number of times; that on the night of the accident the weather was nasty; that he had not been frightened by Godwin's driving and that Godwin was operating the car in a proper manner and at a normal speed. He stated that he had not looked at the speedometer, but that Godwin was not driving fast enough to make him look at it. He testified that there was a car ahead of Watson's truck and that they were 'very close' together.

When questioned in regard to Godwin's reaction to his warning, he stated 'to my belief he was putting on brakes when I said 'Look out"'. He was then asked 'When that occurred how close was Mr. Godwin's automobile to the truck?' He replied 'He was very close. Very close -- I don't drive a car. I mean -- I would say -- maybe a distance of a car.' In response to a question on cross-examination by Watson's attorney, Atwell testified that he first saw the truck when it turned out from behind the car, and at that time Godwin's car was 'maybe two lengths of a car' away from Watson's truck which 'was coming catty-corner across the street.' He testified that at the time the two vehicles came together the Godwin car was on its proper side of the road.

It will be seen from the above that the answers given by Atwell were definite and concise. At no time did he state that he did not know or did not remember the details of the accident. He answered all but two questions in a positive manner and his only doubt as to those was whether Godwin had applied the brakes before he was warned of the truck and whether Godwin's car was one or two car lengths away when Watson's truck turned across the center line in front of Godwin. It is evident from the record that Atwell knew what occurred on this occasion and did not hesitate to tell the court and the jury the details of the happening.

He described Godwin's speed as normal and the operation of the car as proper. He placed Godwin's vehicle within one or two car lengths of the truck at the time the truck began to turn left and stated that he believed that Godwin was already applying brakes when he warned him. His entire evidence fails to make a single allegation of negligence against Godwin. The tenor of his evidence indicates that he did not believe that Godwin was in any way at fault, but was, like himself, the victim of Watson's negligence.

Section 8-646.1 Va. Code 1950 provides inter alia 'no person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation * * * shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the operation of such motor vehicle, unless such death or injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator.'

We have consistently held that where a litigant testifies unequivocally to facts within his knowledge and upon which his case turns, he is bound thereby and cannot rely upon other evidence in conflict with his own testimony to strengthen his case. See Crew v. Nelson, 188 Va. 108, 113, 49 S.E.2d 326, 328.

Gross negligence means something more than lack of ordinary care. It is an utter disregard of prudence amounting to complete neglect of the safety of the guest, heedless and reckless disregard of the rights of the guest, or conduct which shows an utter disregard of prudence amounting to complete neglect of the safety of another. Reel v. Spencer, 187 Va. 530, 535, 47 S.E.2d 359, 361; Sibley v. Slayton, 193 Va. 470, 477, 69 S.E.2d 466, 470.

It was incumbent upon the plaintiff Atwell to prove by a preponderance of the...