Crabtree v. Dingus, 4033

• Decision Date: 26 January 1953
• Docket Number: No. 4033,4033
• Citation: 74 S.E.2d 54,194 Va. 615
• Parties: GROVER C. CRABTREE v. EMERY DINGUS AND TROY SALYERS, ADMINISTRATORS OF THE ESTATE OF COSBY MULLENS, DECEASED. Record
• Court: Virginia Supreme Court

Page 54

74 S.E.2d 54

194 Va. 615

GROVER C. CRABTREE v. EMERY DINGUS AND TROY SALYERS, ADMINISTRATORS OF THE ESTATE OF COSBY MULLENS, DECEASED.

Record No. 4033.

Supreme Court of Appeals of Virginia

January 26, 1953.

Kiser, Vicars & Kiser, S. H. Sutherland and George C. Sutherland, for plaintiff in error.

Glyn R. Phillips, Hansel Fleming, for defendants in error.

JUDGE: SMITH

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

The administrators of the estate of Cosby Mullens recovered a verdict and judgment of $12,000 for her death which resulted from injuries received while riding as a guest in an automobile owned and operated by the defendant, Grover C. Crabtree. To that judgment this writ of error was awarded.

The decisive question presented by the assignments of error is this: Was the evidence sufficient to convict the defendant of gross negligence?

On the evening of March 6, 1951, Cosby Mullens, a sixty-eight year old woman, accompanied by her husband, David C. Mullens, Henry Sargent and others went to the defendant's home and requested him, a sixty-seven year old lay preacher, to accompany them to Coeburn, Virginia, to preach at a funeral. Crabtree agreeing to go, the Mullenses and Sargent decided to ride with him while the others went ahead in another car. After supper, the four started to Coeburn on Route No. 72 in Crabtree's 1950 Buick sedan. The defendant and the Mullenses occupied the front seat and Sargent rode alone on the back seat. It was dark and raining by the time they started, but there is no other evidence that visibility was poor. Crabtree was familiar with the highway, for he had traveled it three or four times a week for several years.

The accident occurred after they had gone about eighteen miles at a point where the road makes a sharp curve to the left and then passes over a culvert. This curve was indicated by a warning sign one tenth of a mile from the culvert. The highway at the point of the accident is eighteen feet wide; the culvert is twenty-three feet wide and nineteen feet long, with a guard railing or superstructure of three reinforced concrete posts and two concrete rails on each side, about three feet from the edges of the hard surface. The record is not accurately descriptive, but according to the pictorial exhibits the road is almost straight for about seventy-five feet from the apex of the curve to the culvert.

The center of the car's bumper hit and cracked the first concrete post on the right side of the culvert, and the front of the car was badly damaged as a result of the impact. Both Mr. and Mrs. Mullens were killed, Sargent suffered a fractured skull, Crabtree received a broken knee cap and serious chest and head injuries, and was hospitalized for about three weeks.

After the accident the car, which had been going up a seven percent grade, slued to its right and rolled back down the bank about nine feet in the direction from whence it had come. It came to rest with the rear end eleven feet from the edge of hard surface.

State Trooper Riner, who went to the scene soon after the accident, testified that he talked to Crabtree in the hospital at Coeburn (the record fails to show the time of this conversation) and that the defendant was badly injured and suffering very much. He also testified that Crabtree told him then that he was 'running at approximately 40 miles an hour.'

Riner, Trooper R. H. Wilson, and the resident highway engineer, L. R. Treat, were called by the plaintiffs to prove matters pertaining to the road and the construction of the culvert. However, the proof of negligence, if any, must be found in the testimony of Crabtree and Sargent, the only surviving eye-witnesses to the collision.

Sargent, who was called as a witness for the plaintiffs, could not recall the speed of the car nor any other details of the collision. He testified that prior to the accident he saw nothing wrong with Crabtree's driving, that he did not consider it too fast and that he would have asked him to slow down had he thought so. Sargent also testified that no protest was made by anyone regarding the speed of the car or the manner of Crabtree's driving.

The defendant was called as an adverse witness by the plaintiffs and was asked whether his injuries affected his recollection or memory. He answered, 'I have thought, while I wouldn't want to make a statement that it has, I have thought it has. ' He did not think he lost consciousness at the scene of the accident and remembered how he got to the hospital, but did not remember who took him there.

Upon being asked by counsel for the plaintiffs, 'just before the wreck occurred, do you know just what happened or what caused it? ' He answered, 'Just exactly what called my attention, I could not state. I hardly know. I could explain, but you go ahead and ask the questions. ' He was then asked, 'You can't say one thing that caused the wreck? ' Crabtree answered, 'No, sir, it is very dim to my mind, right on the spur of the moment when the car hit the headwall. ' He was then asked whether he could clearly recall the accident. His reply was that he could not, then he went on to say 'There was something called my attention or some way or other when I was making the curve to go in and I cut slightly to the right and when I cut it slightly to the right, I was headed to the headwall. ' He continued, 'No I do not know whether there was an object or whether it was something else. I just cannot make a clear statement, I wish I could, but I can distinctly remember cutting back to the right. * * * I couldn't say to save my soul exactly what called my attention to that point. ' The defendant had no recollection of his speed at the time of the collision. To a question by the court as to whether he slowed down as he approached the curve, he answered, 'Judge I couldn't answer that correctly. I don't know if I did or if I didn't. I just can't remember about it.'

The plaintiffs' attorney also asked the defendant, 'Do you remember seeing the sign which we have talked about, the black arrow sign on the yellow signboard down there before you got to the curve? ' The defendant answered, 'No, sir, I don't remember seeing it.'

There is no evidence that the car skidded at any time before it hit the railing of the culvert or that its right wheels left the hard surface until immediately before the collision.

Under our guest statute, Code 1950, § 8-646.1 and the decided cases, no personal representative of a person transported by the owner or operator of any motor vehicle as a guest is entitled to recover damages against such owner or operator for the death of his decedent resulting from the operation of such motor vehicle, unless such death was caused by or resulted from gross negligence or the willful and wanton disregard of the safety of the guest by such owner or operator.

Gross negligence, as we have often said, is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another. Millard v. Cohen, 187 Va. 44, 46 S.E. (2d) 2; and the cases there cited. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Thornhill v. Thornhill, 172 Va. 553, 2 S.E. (2d) 318. It has been described as such heedless and reckless disregard of the rights of another as should shock fair-minded men. Carr v. Patram, 193 Va. 604, 70 S.E. (2d) 308; Sibley v. Slayton, 193 Va. 470, 69 S.E. (2d) 466; Reel v. Spencer, 187 Va. 530, 47 S.E. (2d) 359; and Carroll v. Miller, 175 Va. 388, 9 S.E. (2d) 322.

The plaintiffs say that there is proof of excessive speed after dark on a wet road at a sharp curve and that the defendant, being familiar with the road, should have known that he could not safely negotiate the curve at the speed he was going. This 'proof,' however, consists only of inferences drawn from some of the statements attributed to the defendant that he was 'running at approximately 40 miles an hour,' that he definitely recalled traveling forty-seven miles per hour about two miles before the accident, and that he did not recall whether he slowed down or not. But the defendant nowhere stated the speed of the car immediately before the accident; on the contrary he said he did not know how...