Community Motor Bus Co., Inc. v. Windley, 800861
| Decision Date | 21 January 1983 |
| Docket Number | No. 800861,800861 |
| Citation | 224 Va. 687,299 S.E.2d 367 |
| Court | Virginia Supreme Court |
| Parties | COMMUNITY MOTOR BUS COMPANY, INC. v. John WINDLEY, Jr. Record |
Robert G. Winters, Norfolk (Joseph M. Young; White, Reynolds, Smith & Winters, Norfolk, on briefs), for appellant.
S. Earl Griffin, Portsmouth (Griffin, Pappas & Scarborough, Portsmouth, on brief), for appellee.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
John Windley, Jr., sued the Community Motor Bus Company, Inc., alleging he was injured as a result of the company's negligence. A jury verdict in favor of Windley was approved by the trial court, and the Company appeals. The dispositive question is whether the evidence is sufficient as a matter of law to prove gross negligence.
Since Windley prevailed in the court below, we will state the evidence in the light most favorable to him. On March 3, 1974, Windley, a part-time security guard, boarded the defendant's bus. He displayed his badge to the driver who, mistaking him for a police officer, permitted Windley to ride without charge. The company had a policy of allowing city police officers to ride its buses without paying a fare.
After Windley was seated, the bus proceeded along Portsmouth Boulevard at a speed of approximately 30 miles per hour. The speed limit was 35 miles per hour. Suddenly, the driver saw a bottle shatter on the street in front of him. As a result, he slowed the bus momentarily. A rock then crashed through a window, splattering glass on Windley. Windley, the driver, and other passengers initially thought the rock was a bullet.
When the window was broken, Windley stood up in the aisle, held the rail, and braced himself. The bus seemed to accelerate, and after it had proceeded 250 to 300 feet, it stopped suddenly near a telephone booth, throwing Windley to the floor. (The driver intended to use the telephone to call the police.) Not more than ten seconds elapsed from the time the window was broken until the bus came to a stop. Several other passengers testified that when the bus stopped they were thrown forward slightly, but none was injured.
The trial court, relying on the "Guest Statute," Code § 8-646.1, * ruled Windley had the burden of proving the driver was guilty of gross negligence. Adopting the definition of gross negligence approved in Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971), the trial court instructed the jury that:
gross negligence is that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of the guest. It must be such a degree of negligence as would shock fair minded persons although something less than willful recklessness.
Proof of gross negligence depends upon the facts and circumstances of the particular case. If fair minded men can differ respecting the conclusion to be drawn from the evidence, a jury question is presented. On the other hand, if the evidence is such that fair minded men cannot differ, the question whether gross negligence has been established is one of law. Alspaugh v. Diggs, 195 Va. 1, 5, 77 S.E.2d 362, 364 (1953).
Gross negligence, of course, requires proof of something more than the lack of ordinary care. Reel v. Spencer, 187 Va. 530, 535, 47 S.E.2d 359, 361 (1948).
A mere failure to skilfully operate an automobile under all conditions, or to be alert and observant, and to act intelligently and operate an automobile at a low rate of speed may, or may not, be a failure to do what an ordinarily prudent person would have done under the circumstances, and thus amount to lack of ordinary care; but such lack of attention and diligence, or mere inadvertence, does not amount to wanton or reckless conduct, or constitute culpable negligence for which defendant would be responsible to an invited guest.
Young v. Dyer, 161 Va. 434, 440-41, 170 S.E. 737, 739 (1933).
Applying these principles in Carr v. Patram, 193 Va. 604, 70 S.E.2d 308 (1952), we held a driver was not grossly negligent in losing control of her car when...
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