Boggs v. Plybon.*

• Decision Date: 17 September 1931
• Parties: BOGGS v. PLYBON.*
• Court: Virginia Supreme Court

160 S.E. 77

BOGGS

v.PLYBON.^*

Supreme Court of Appeals of Virginia.

Sept. 17, 1931.

GREGORY, J., dissenting.

Error to Hustings Court of Roanoke.

Action by notice of motion for judgment by F. H. Boggs against J. S. Plybon. To review a judgment for defendant, plaintiff brings error.

Affirmed.

Argued before CAMPBELL, HOLT, EPES, HUDGINS, and GREGORY, JJ.

A. L. Hughson and Horace M. Fox, both of Roanoke, for plaintiff in error.

Willis & Hunter, of Roanoke, for defendant in error.

HOLT, J.

On the afternoon of November 13, 1929, J. S. Plybon of Roanoke had occasion to visit the village of Buchanan. He was accompanied by Mr. F. H. Boggs, a friend and an invited guest. The trip was made in Plybon's automobile, driven by himself. On their way back about 6:45 p. m. and soon after they had passed the village of Troutville, this car left the roadway, struck a telephone pole and a fence, severely injuring the plaintiff, who afterwards filed a notice of motion for judgment. It was heard in due course. After the evidence had been introduced the defendant demurred thereto. There was a verdict in the sum of $7,500, subject to this demurrer. The trial court was of opinion that it should be sustained, so ordered and entered judgment for the defendant, which judgment now comes before us on a writ of error.

It had been raining on the day of the accident and there was some mist and fog at the time it occurred. The roadway itself was of macadam construction with a hard surface 18 or 19 feet wide. On its right-hand side going to Roanoke was a dirt shouldersomething like 4 feet wide whose extreme west edge sloped down at an angle of repose to the earth's surface as it originally was, about 8 feet below the fill on which the road, was built. At the point of the accident this road ran on a curve to the left whose radius was 900 feet and was slightly downgrade. The car in question was properly on its right-hand side, but, as it afterwards developed, was too near the edge of the macadam over which it ran. When its right wheel struck the soft wet earth of the shoulder, the defendant attempted to cut back on the road, but due, in all human probability, to surface conditions, he was unable to do this, lost control, and suffered the accident which is the subject of inquiry here.

As we have seen, the judgment in this case is one which sustains the demurrer and sets aside the verdict of the jury. Like all judgments, it is presumed to be right until error is shown. If there was evidence in the record upon which the jury might with propriety have found for the plaintiff, then that evidence is sufficient to establish error. But if there was no evidence on which fair-minded men could have found for the plaintiff, then in that case the court acted properly in sustaining the demurrer and in entering judgment for the defendant. As will hereafter appear, we have reached the conclusion that the evidence was wholly insufficient to sustain a recovery.

It is always necessary for the plaintiff to prove his ease. The mere happening of an accident is not sufficient basis for a verdict, or for a judgment, on a demurrer to the evidence or otherwise.

It is true that in some circumstances when positive evidence is wanting, evidential presumptions may be invoked to sustain a claim. In other words, the doctrine of res ipsa loquitur is sometimes applied, but its proper application rests always in the nature and quality of the accident. Roanoke Ry. Co. v. Sterrett, 108 Va. 533, 62 S. E. 385, 19 L. R. A. (N. S.) 316, 128 Am. St. Rep. 971.

"The rule itself is one of evidence and amounts to a prima facie presumption of fact sometimes resorted to by the court in the absence of evidence. It is a rule of necessity, to be invoked only when necessary evidence is absent and not readily available. On the other hand, it is not to be invoked when the evidence is in fact available and, a fortiori, not when it is actually presented. In such circumstances the case goes to the jury unhampered by any presumption at all." Riggsby v. Tritton, 143 Va. 903, 129 S. E. 493, 496, 45 A. L. R. 280.

Professor Wigmore, in discussing this presumption, said:

"It may be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him, but inaccessible to the injured person." Wigmore on Evidence, § 2509.

The steering gear was not out of order or, if it was, the defendant did not know it, and cannot be charged with knowledge. A guest takes a car as he finds it, and the owner is not liable for damage from defects unless they are known to him and not patent to the passenger. Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855; Marple v. Haddad, 103 W. Va. 508, 13S S. E. 113, 61 A. L. R. 1248.

It is manifest that the accident was due to the fact that Plybon, on a dark night, drove too near the edge of the macadam and onto the wet, soft shoulder of the road.

Where the facts appear in evidence, there is no occasion to resort to evidential presumptions. Such an expedient is one of necessity, to be applied only when the facts are not known or when they lie peculiarly within the breast of the defendant. Plybon knew nothing that Boggs did not know.

The doctrine of res ipsa loquitur has no application.

If the plaintiff can recover at all, it is because the defendant has neglected to perform some duty due to him as an invited guest. Courts are not in accord as to its measure in such circumstances. Nowhere has this subject received more painstaking consideration than in Massaletti v. Pitzroy, 228 Mass. 487, 118 N. E. 168, 176, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088.

The Massachusetts court in an able opinion reached the conclusion that there should be no recovery except where negligence was gross, and in the course of its opinion said:

"It would seem that in England the liability of a gratuitous bailee and the liability of one who undertakes a gratuitous transportation is the same. And to this one thing more must be added namely: However much the English judges have quarreled with the meaning of the words 'gross negligence' it is the fact that when pushed to a decision the judges of England have invariably held that to make out liability in case of a gratuitous undertaking (no matter what the nature of the gratuitous undertaking was) gross negligence has to be made out. Giblin v. McMullen, L. R. 2 P. C. 317, 5 Moore, P. C. 434, 16 Eng. Reprint, 578, 38 L. J. P. C. N. S. 25, 21 L. T. N. S. 216, 17 Week. Rep. 445; Moffatt v. Bateman, L. R. 3 P. C. 115, 22 L. T. N. 6. 140, 6 Moore, P. C. C. N. S. 369, 16 Eng. Reprint, 765; Coughlin v. Gillison (1899) 1 Q. B. 145, 68 L. J. Q. B. N. S. 147, 47 Week. Rep. 113, 79 L. T. N. S. 627."

This conclusion has been reaffirmed in Shriear v. Feigelson, 248 Mass. 432, 143 N. E. 307; and in Marcienowski v. Saunders, 252 Mass. 65, 147 N. E. 275. See also Epps v. Parrish, 26 Ga. App. 399, 106 S. E. 297, and Silver v. Silver, 280 U. S. 117, 50 S. Ct. 57, 74 L. Ed. 221.

Other courts have refused to adopt the "gross negligence" rule and hold that ordinary care is the yardstick to he applied. Dickerson v. Connecticut Co., 98 Conn. 87, 118 A. 518. This also is a leading case, as is that of Avery v. Thompson, 117 Me. 120, 128, 103 A. 4, 7, L R. A. 1918D, 205, Ann. Cas. 1918E, 1122, where the court said: "In other words, we conceive the true rule to be that the gratuitous undertaker shall be mindful of the life and limb of his guest and shall not unreasonably expose her to additional peril. This would seem to be a sane, sound, and workable rule; one consistent with established legal principles and just to both parties. It leaves the determination of the issue to the jury as a question of fact."

In a general way the rule last stated was adopted by the Special Court of Appeals, in Morris v. Peyton, 148 Va. 812, 139 S. E. 500; but it is to be borne in mind that the court was there dealing with an infant of tender years, who, at the time of the accident, was standing upon the running board or fender of a truck. The duty to an infant rather than the duty to a guest controlled that decision.

Most courts have abandoned the division of negligence into classes, as too vague to bo of value. Virginia, etc., R. Co. v. Sayers, 26 Grat. (67 Va.) 328.

"Nevertheless, this broad and simple classification is, with us, still regarded as useful and convenient in two or more classes of cases. The terms 'utmost care' and 'slightest...