Brown v. Parker

• Decision Date: 14 January 1937
• Parties: BROWN et al. v. PARKER.
• Court: Virginia Supreme Court

189 S.E. 339

BROWN et al.

v.PARKER.

Supreme Court of Appeals of Virginia.

Jan. 14, 1937.

Error to Circuit Court of City of Williamsburg and County of James City; Frank Armistead, Judge.

Action by Robert Parker against A. B. Brown and another. Judgment for plaintiff, and defendants bring error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

James H. Price, of Richmond, and Ashton Dovell, of Williamsburg, for plaintiffs in error.

Channing M. Hall and Merrill Brown, both of Williamsburg, for defendant in error.

HOLT, Justice.

In an automobile collision Robert Parker was hurt and, because of injuries so suffered, he has won a judgment against A. B. Brown and Oliver Farm Equipment Sales Company in the sum of $3,097. We have had occasion to deal with that collision in a case this day decided wherein Frank J. Lee was the plaintiff. 189 S. E. 339. The defendants here were the defendants there.

The general situation as has been stated was this: Lee, driving a light unloaded Ford truck, was traveling east on a paved road, while Brown in a Chevrolet coupe, on the business of his master, the Oliver Company, came south on a dirt road. These roads crossed each other practically at right angles. When Brown was 65 or 75 feet away from this intersection, he could have seen the truck for a distance of several hundred feet, and he could have, seen it for at least 300 feet from the point of intersection. Lee could have seen the coupe when it was 65 or 75 feet north of the crossing. Within these distances, there was nothing to prevent the driver of the coupe from seeing the truck and the driver of the truck from seeing the coupe, yet they ran together, the truck striking the coupe broadside.

We have held that Lee was guilty of contributory negligence, and for that reason his judgment has been set aside. This record also shows him to have been negligent. On the morning of the accident he took some chickens in coops from his home to Five Forks. Parker, a colored man and neighbor, at Lee's request, helped him in loading, and at Lee's suggestion rode with him to Five Forks. It was upon their return that the accident occurred. Theseroads were well known to both of these men, and Lee was an experienced driver. Parker tells us that as they approached this intersection Lee was driving slowly, at an estimated speed of from 20 to 25 miles an hour.

What relation did they bear to each other? Lee paid Parker nothing for what he did, and Parker was in no wise interested in the undertaking. Such work in loading as he did was gratuitous, and he rode with Lee at Lee's suggestion. He was but an invited guest. Poole v. Kelley, 162 Va. 279, 173 S.E. 537; Gale v. Wilber, 163 Va. 211, 175 S.E. 739; Flynn v. Lewis, 231 Mass. 550, 121 N.E. 493, 2 A.L.R. 896 But Lee is not a party to this action, and so the guest doctrine is not directly involved.

Defendants in substance contend that their negligence has not been proven. They say "the law places upon them [plaintiff] the burden of showing by a preponderance of evidence that the defendants were guilty of negligence. Neither the plaintiff nor any of the witnesses testifying for him can give any connected account of the accident or any explanation of how it happened. The plaintiff certainly cannot recover upon the showing that he has made. The negligence, if any, must be charged to the driver of the truck." Petition for writ of error. It will be seen from this that negligence is not directly charged against Parker, nor does the record show him to have been negligent. It is true that he was inattentive, he did not see the coupe until the moment of impact, and did not know how the collision occurred.

In Hancock v. Norfolk & Western Railway Company, 149 Va. 829, 141 S.E. 849, it was held that the negligence of a driver is not always to be imputed to a passenger, but that it is his duty to use ordinary care for his own safety and that a railroad crossing is in itself a danger signal. If Parker had kept the most vigilant of outlooks, what would he have seen? He would have seen a car, approaching from the left, on a county dirt road and presumably at proper speed. Upon what did he have a right to rely? His driver was experienced, competent, and knew the country well. They were proceeding at a reasonable rate and could be seen from the coupe. There is no reason to believe that that car would undertake to cross in front of his truck plainly visible, for, since the truck was on the right, it had the right of way (Code, § 2154 (123), subd. a), while the coupe was required to come to a full stop before undertaking to cross at all (Code, § 2154 (132). In these circumstances there was no occasion for him to caution his driver or to do anything else. A dirt crossing, unlike a railway crossing, is not of itself a danger signal.

Plaintiff's contention seems to be that these men were upon a common venture and that Lee's negligence can be imputed to Parker. Parker, as we have seen, was a guest or invitee, and as such could exercise no control over Lee. Some measure of joint control is necessary to make the venture joint.

In Virginia R. & P. Co. v. Gorsuch, 120 Va. 655, 91 S.E. 632, 633, Ann.Cas. 1918B, 838: "The doctrine of imputable negligence has been much discussed, and the books are full of cases dealing with the question. ...