Boggs v. Plybon

• Decision Date: 17 September 1931
• Court: Virginia Supreme Court
• Parties: F. H. BOGGS v. J. S. PLYBON.

Page 30

157 Va. 30

F. H. BOGGS v. J. S. PLYBON.

Supreme Court of Virginia, Staunton.

September 17, 1931.

Present, Campbell, Holt, Epes, Hudgins and Gregory, JJ.

19 JUDGMENTS AND DECREES — Presumption in Favor of Correctness of Judgment — Judgment on Demurrer — Case at Bar. — The instant case was an action by a guest against the owner and driver of an automobile for injuries sustained by the guest. There was a demurrer to plaintiff's evidence which was sustained by the court. Like all judgments the judgment in the instant case on demurrer 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 fairminded 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.

2. AUTOMOBILES — Action for Injuries to Guest — Plaintiff Must Prove His Case — Res Ipsa Loquitur. — It is always necessary for the plaintiff to prove his case. 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. The doctrine of res ipsa loquitur is a rule of necessity, to be invoked only when necessary evidence is absent and not readily available, or lies peculiarly within the breast of the defendant. Where the facts appear in evidence there is no occasion to resort to evidential presumptions.

3. AUTOMOBILES — Guest in Automobile Injured when Car ran off the Macadam on to the Shoulder of the Road — Res Ipsa Loquitur — Doctrine of Res Ipsa Loquitur Not Applicable. — The instant case was an action by a guest against the driver and owner of an automobile for injuries sustained in an accident. The accident was due to the fact that the driver of the automobile on a dark night drove too near the edge of the macadam and on to the wet soft shoulder of the road. Defendant knew nothing that plaintiff did not know.

Held: That the doctrine of res ipsa loquitur has no application to the instant case, and if plaintiff could recover at all it was because the defendant had neglected to perform some duty due to him as an invited guest.

4. NEGLIGENCE — Grades of Negligence — Gross Negligence — Definitions. — Negligence lies in the omission of due care in the performance of some duty. That duty varies in each case as the facts vary, and so some particular act which would be actionable negligence under one set of circumstances would give no basis for recovery in another. Gross negligence quoad a passenger might not be negligence at all when dealing with a trespasser, and so the distinction in grades of negligence is at times not very important, if shifting standards of duty are borne in mind.

5. NEGLIGENCE — Refusal to Recognize Grades of Negligence — Negligence an Elastic Term. — Such loss of elasticity as lies in the refusal of courts to recognize varying grades of negligence finds measurable compensation in the fact that negligence itself is an elastic term. The same act may be at one time actionable and at another, not, and changes with its setting.

6. NEGLIGENCE — Gratuitous Undertakings — Measure of Care by Gratuitous Undertaker. — Justice requires that the one who undertakes to perform a duty gratuitously should not be under the same measure of obligation as one who enters upon the same undertaking for pay. There is an inherent difficulty in stating the difference between the measure of duty which is assumed in the two cases. But justice requires that to make out liability in case of a gratuitous undertaking, the plaintiff ought to prove a materially greater degree of negligence than he has to prove where the defendant is to be paid for doing the same thing.

7. AUTOMOBILES — Liability of Driver to Guest — Duty of Driver — Assumption of Risk by Guest. — To hold that a guest who, for his own pleasure, is driving with his host may recover from him for injuries suffered where there is no culpable negligence, shocks one's sense of justice. The driver is often not an expert and makes no implied representations beyond these, namely, that he will not knowingly or wantonly add to those perils which may ordinarily be expected, and that there are no known defects in the car which make its operation particularly hazardous. Moreover, he should disclose to his guest any other peril not patent. Beyond this all risks are assumed.

8. AUTOMOBILES — Dangerous Instrumentality. — While automobiles in themselves may not be dangerous instrumentalities, yet their use carries with them dangers that cannot be forgotten.

9. AUTOMOBILES — Liability of Driver to Guest — Duty of Driver — Assumption of Risk by Guest. — Only ordinary risks are assumed by a guest and recklessness makes the driver liable.

10. AUTOMOBILES — Liability of Driver to Guest — Duty of Driver — Assumption of Risk by Guest — Case at Bar. — The instant case was an action by a guest against the driver and owner of an automobile for damages arising out of an accident. Defendant on a dark night drove the car along the outside edge of a slightly curved road and on its right-hand side and by chance a trifle too far to the right, so that his right wheel ran from the hard surface of the road into the soft shoulder and the accident occurred. There was no purpose to leave the road because the wheels were inadvertently driven too close to the edge of the macadam and slipped off. If there was any negligence it was this. It is not negligence per se for the outside wheel of an automobile, traveling at a reasonable rate, to run off the macadam.

Held: That if plaintiff was to prevail, it must be held that such an incident is in itself negligence, and no matter what standard is adopted in measuring the duty of the driver to a guest, this cannot be done.

Error to a judgment of the Hustings Court of the city of Roanoke in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

A. L. Hughson and Horace M. Fox, for the plaintiff in error.

Willis & Hunter, for the defendant in error.

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

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 $7,500.00, 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 has 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 eighteen or nineteen feet wide. On its right-hand side going to Roanoke was a dirt shoulder something like four feet wide whose extreme west edge sloped down at an angle of repose to the earth's surface as it originally was, about eight 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 down grade. 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 fairminded 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 case. 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. Sterrett, 108 Va. 533, 62 S.E. 385, 128 Am.St.Rep. 971, 19 L.R.A.(N.S.) 316.

"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...