Dodrill v. Young

• Citation: 143 W.Va. 429,102 S.E.2d 724
• Decision Date: 01 April 1958
• Docket Number: No. 10896,10896
• Court: Supreme Court of West Virginia
• Parties: Blanche H. DODRILL v. Samuel Herschel YOUNG.

Page 724

102 S.E.2d 724

143 W.Va. 429

Blanche H. DODRILL v. Samuel Herschel YOUNG.

No. 10896.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 8, 1958.

Decided April 1, 1958.

Syllabus by the Court

1. In an action instituted in this State to recover damages for personal injuries received in another State the right of recovery will be tested by the laws of that State.

2. Gross negligence within the meaning of Section 646.1, Article 5, Title 8, Code of Virginia, 1950, is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another.

3. Under the law of Virginia, the act of driving an automobile on the wrong side of a public highway may, in certain circumstances, constitute gross negligence.

4. Under the law of Virginia, when numerous negligent acts are so combined that reasonable men may differ as to whether their cumulative effect shows a form of recklessness or a total disregard of all precautions akin to willful and wanton misconduct, it is a question for the jury whether such negligence amounts to gross negligence.

5. Under the law of Virginia, gross negligence is ordinarily a question of fact for the jury and only becomes a question of law for the court when reasonable men should not differ as to the proper conclusion to be drawn from the evidence.

6. When an action for the recovery of damages for personal injuries, involving conflicting testimony and circumstances upon the questions of negligence and contributory negligence, has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence, or without sufficient evidence to support it.

Fitzpatrick, Marshall, Huddleston & Bolen, E. A. Marshall, Huntington, for plaintiff in error.

Dodrill, Barrett & Dunbar, J. J. N. Quinlan, Huntington, for defendant in error.

HAYMOND, President.

In this action of trespass on the case, instituted in the Circuit Court of Cabell County, the plaintiff, Blanche H. Dodrill, a married woman, seeks to recover damages from the defendant, Samuel Herschel Young, for personal injuries sustained by her in a collision between a 1951 Packard sedan automobile owned and driven by the defendant, in which the plaintiff was riding as his guest, and a 1947 GMC one-ton truck driven by a man named Vanover on a public highway designated as United States Route No. 19 about five and one-half miles southwest of Claypool Hill in Russell County, Virginia, on Sunday afternoon, June 19, 1955.

Upon the first trial of the case the jury disagreed but upon the second trial another jury returned a verdict in favor of the plaintiff for $8,000 on October 4, 1956. Motions by the defendant for a directed verdict in his favor made at the conclusion of the evidence offered in behalf of the plaintiff and after the introduction of all the evidence and a motion to set aside the verdict and award the defendant a new trial were overruled and by order entered December 14, 1956, the circuit court rendered judgment for the plaintiff for the amount of the verdict with interest and costs. To that judgment this Court granted this writ of error on May 13, 1957, upon the application of the defendant.

As the collision in which the plaintiff sustained the injuries of which she complains occurred in the Commonwealth of Virginia the right of the plaintiff to recover damages for such injuries must be determined by the laws of that State as applied by its courts. Saena v. Zenith Optical Company, 135 W.Va. 795, 65 S.E.2d 205; Dallas v. Whitney, 118 W.Va. 106, 188 S.E. 766; Schade v. Smith, 117 W.Va. 703, 188 S.E. 114; Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Clise v. Prunty, 112 W.Va. 181, 163 S.E. 864; Clise v. Prunty, 108 W.Va. 635, 152 S.E. 201. In the Saena case, quoting from Clise v. Prunty, 108 W.Va. 635, 152 S.E. 201, this Court held that in an action instituted in this State to recover damages for personal injuries received in another State the right of recovery will be tested by the laws of that State.

Section 646.1, Article 5, Title 8, Code of Virginia, 1950, enacted in 1938, provides that 'No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and no personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property or such guest resulting from the operation of such motor vehicle, unless such death or injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator.'

The defendant assigns as errors requiring reversal of the judgment the action of the circuit court (1) in overruling the motion of the defendant for a directed verdict at the conclusion of the evidence in behalf of the plaintiff; (2) in overruling the motion of the defendant for a directed verdict at the conclusion of all the evidence; and (3) in overruling the motion of the defendant to set aside the verdict of the jury and to grant him a new trial.

The controlling question presented by these assignments of error is whether the evidence sufficiency establishes gross negligence of the defendant as the proximate cause of the injuries sustained by the plaintiff.

On Sunday morning, June 19, 1955, the defendant, accompanied by his wife, Mr. and Mrs. Harold B. Steele, and the plaintiff, left Huntington, where all of them resided, in a Packard sedan automobile owned and operated by the defendant for the purpose of attending a convention at Asheville, North Carolina, to which he and Steele were delegates. Steele occupied the right front seat, Mrs. Steele the left rear seat, Mrs. Young the right rear seat, of the automobile, and the plaintiff was seated between Mrs. Young and Mrs. Steele. They proceeded from Huntington east to Charleston; from Charleston to Princeton they traveled over the West Virginia Turnpike; and from Princeton to the scene of the wreck, which is approximately forty five miles southwest of Bluefield, they traveled over United States Route No. 19. At Claypool Hill, about five and one-half miles from the scene of the collision, they stopped a short time for lunch. While traveling on the Turnpike the speed of the automobile varied from thirty or forty to fifty, sixty or seventy miles per hour. After leaving the Turnpike the defendant drove the automobile at a speed of approximately fifty to sixty miles per hour. According to the testimony of Mrs. Steele, the speed of the automobile after it left the Turnpike caused comment by the plaintiff, Mrs. Young, and Mrs. Steele to the effect that the defendant should have driven faster than thirty to forty miles per hour on the Turnpike instead of driving at the higher speed on the curved sections of United States Route No. 19.

United States Route No. 19 between Claypool Hill and the scene of the wreck follows a winding course. Its improved portion is approximately eighteen feet in width and its surface is made of material known as blacktop which is slippery when wet. The collision occurred on the section of the highway between two bridges which cross Indian Creek near a wide semicircular bend in that stream. The width of the highway on each bridge is nineteen feet. The length of the section of the highway between the two bridges, as indicated by two maps filed as exhibits, is approximately 350 feet. For a distance of approximately thirty five feet from the end of each bridge the highway between the bridges is straight but for the remainder of the distance of approximately two hundred and eighty feet it curves to the right in the direction in which the automobile driven by the defendant was traveling.

At the time of the wreck, which occurred about two o'clock in the afternoon, the automobile of the defendant was proceeding generally in a southwesterly direction and the truck with which it collided was traveling generally in a northeasterly direction on the highway. At a distance of approximately 1,000 feet north of the first bridge which the defendant was approaching is a road sign to the right of the highway which bears the legend 'Winding Road Maximum Safe Speed 35 Miles' and at a distance of approximately 300 feet north of the same bridge is a road sign to the right of the highway which bears the legend 'Narrow Bridge'. The defendant testified that he was unable to say whether he noticed these signs when approaching the first bridge.

When the defendant left Claypool Hill it was raining. The road was wet and slippery and this condition continued to the place where the wreck occurred. After crossing the first bridge, which he approached at a speed of from fifty to sixty miles per hour, the defendant drove the automobile through the curve to his left of the white double line marking the center of the curve at a speed of from forty to fifty miles per hour and skidded forward at a speed of from thirty to thirty five miles per hour into the front end of the approaching truck which was on its right side of the highway and the rear end of which was at the northeast end of the second bridge at the time of the collision.

The plaintiff testified that after the automobile left Claypool Hill and between that place and the scene of the wreck she observed from the speedometer that it was traveling between seventy and seventy five miles per hour and that she then told Mrs. Young to request the defendant to reduce its speed. She also stated that the defendant could have heard her remarks about the speed. The plaintiff, however, did not indicate exactly where the automobile was traveling when she made the statement to Mrs. Young. Mrs. Steele testified that she heard the plaintiff tell Mrs. Young that the defendant was driving about seventy miles per hour and that she was frightened...