Clark v. Parker

• Decision Date: 16 November 1933
• Citation: 161 Va. 480
• Parties: C. R. CLARK v. DEMPSEY F. PARKER.
• Court: Virginia Supreme Court

Page 480

161 Va. 480

C. R. CLARK v. DEMPSEY F. PARKER.

Supreme Court of Virginia, Richmond.

November 16, 1933.

Present, Holt, Epes, Hudgins, Gregory, Browing and Chinn, JJ.

1. AUTOMOBILES — Action by Guest against Host — Defective Brakes — Case at Bar. — The instant case was an action by a guest against his host for injuries received in an automobile accident. The guest was driving the car, and if the host knew or ought to have known that the brakes were defective he should have told the guest, but he was not called upon to communicate to him criticisms which he himself believed were unjustified, and which his own experience had that day justified him in disbelieving. The host on the same day had driven the car 100 miles with no trouble at all. The guest was an experienced driver.

Held: That, under these circumstances, the host was not liable for failing to warn the guest that the brakes were defective.

2. AUTOMOBILES — Action by Guest against Host — Degrees of Negligence — North Carolina Accident — Case at Bar. — The instant case was an action by a guest against his host for injuries resulting from an automobile accident. The accident was a North Carolina accident and in that State there are no degrees of negligence. It follows that ordinary negligence will support a recovery. It is, however, still necessary that the owner knew or should have known that it was unsafe to drive his car.

3. AUTOMOBILES — Liability of Host to Guest — Condition of Automobile. — With respect to the condition of the automobile, the rule is that one invited to ride therein by the owner or driver accepts the machine of his host as he finds it, subject only to the limitation that the driver or host must not set a trap or be guilty of active negligence, contributing to the injury of the guests. Under this rule an automobile owner is not liable to an invited guest riding therein, for injuries sustained by the latter, on the overturning of the machine, because of a defective spring, although it was a second-hand machine, and the spring was repaired with old parts; the owner believing that the car was entirely safe for the carriage of its occupants, and the accident not being caused by the giving away of the repaired part.

4. AUTOMOBILES — Liability of Host to Guest — Condition of Automobile — Belief of Host that Automobile Was in Good Condition — Case at Bar. — The instant case was an action by a guest against his host for injuries resulting from an automobile accident. If the host thought that his car was in good condition and had no fair reason to believe that it was not, that was enough to releve the host from liability for injuries arising from the bad condition of the car.

5. APPEAL AND ERROR — Weight of Verdict Disapproved by Trial Court. — A verdict which has been disapproved by the trial judge is not entitled to the same weight on appeal as one that has been approved by him.

6. NEW TRIAL — Weight of Verdict Disapproved by Trial Court — Consideration by Trial Court of the Evidence. — The very fact that the trial judge is given the power to set aside a verdict as contrary to the evidence necessarily means that he must, to some extent at least, pass upon the weight of the evidence. It would, indeed, be a futile and idle thing for the law to give a court a supervisory authority over the proceedings and manner of conducting a cause before the jury, and the right to set aside the verdict of the jury therein because contrary to the evidence, unless the judge vested with such power could consider, to some extent at least, the evidence in the cause.

7. AUTOMOBILES — Action by Guest against Host — Defective Brakes — Negligence of Guest — Case at Bar. — The instant case was an action by a guest against his host for injuries received in an automobile accident. The guest was driving the car and the negligence assigned by the court was that the host did not warn the guest that the brakes were defective. The accident was due to plaintiff's own negligence in driving when the dust should have driven on a soft road, particularly when the dust was so thick that he could scarcely see the lights on the approaching car. If it were conceded that defendant was negligent in failing to tell him that one who had previously driven the car thought the brakes were defective, the case would be one of concurring negligence.

Held: That the judgment of the trial court in favor of defendant must be affirmed.

Error to a judgment of the Circuit Court of the city of Newport News, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

J. Winston Read, for the plaintiff in error.

Lett, Murray & Ford, for the defendant in error.

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

We are called upon to consider a judgment in a personal injury suit. The plaintiff, C. R. Clark, lives in Oxford, North Carolina, but in July, 1931, he was in Newport News looking for work. The defendant, Dempsey F. Parker, lives in Hilton Village and is the manager of an A. & P. store in Newport News. On July 26, Clark chanced to drop in. While there Parker told him that he was going to drive down to Oxford that night and would be glad to have him go along. This invitation he accepted. They drove down in Parker's Chevrolet car, and with them went a young man, H. J. Barrett, who was also a North Carolinian and lived at Conway, in that State. Conway is something like 100 miles from Oxford. There Barrett got out and Parker and Clark went on their way. Clark says that he did not drive the car at all going down. Both Parker and Barrett say that he did drive it a part of the way. Next day Parker and Clark started back to Newport News and stopped at Conway to pick up Barett. This they did. Parker, who was driving, said that he was sleepy, and asked Clark to take the wheel. It was then about half past eight o'clock at night. In a short time thereafter he came into collision with a Buick sedan driven by a Mr. Neville. The Chevrolet car was wrecked and Clark was badly hurt. He recovered a verdict for $3,000. That verdict was set aside by the trial court, which entered final judgment for the defendant. It is now before us on a writ of error.

Plaintiff claims that the wreck was due to a defect in the brakes of the Chevrolet car; that this defect was known to Parker but was unknown to him and was not made known when he was asked to drive. Parker contends that the brakes were not out of order and would not when applied cause the car to turn to the left.

The road itself was practically straight and was paved with cement to within a short distance of the point of collision. There it had only a dirt surface and was soft. Formerly it was a hard-surface road, but had been plowed up and was being repacked. Clark was driving forty or forty-five miles an hour. Two cars were approaching. The first passed in safety, throwing up much dust. It was with the second, or Neville car, that the collision was had. The Buick car was struck on the left front wheel.

On the day of the accident Parker lent his car to a friend, Mr. Shepherd, who drove down to Raleigh, about fifty miles away. On his return Shepherd told Parker that the brakes were bad and that he came near turning over. When he made this statement Parker answered: "There is not anything the matter with the brakes. You don't know how to drive it." According to Clark's claim, the brakes, when applied, for some reason would cause the car to turn sharply to the left, and that it...