Douglas v. Wood

• Decision Date: 23 January 1953
• Citation: 254 S.W.2d 490
• Parties: DOUGLAS v. WOOD.
• Court: United States State Supreme Court — District of Kentucky

Page 490

254 S.W.2d 490

DOUGLAS v. WOOD.

Court of Appeals of Kentucky.

Jan. 23, 1953.

Robert J. Watson, Middlesboro, for appellant.

E. B. Wilson, Pineville, for appellee.

MORRIS, Commissioner.

Appellee, plaintiff below, following a jury's verdict was awarded a judgment of $5,500 against appellant on account of injuries received in an automobile accident; $500 of the award was for medical and surgical expenses. The proof shows that appellee was severely injured, and there is no contention that the award is excessive.

There is little dispute as to the facts. Both parties are attorneys, residents of Middlesboro, Kentucky, employed by the Kentucky Park Commission in different capacities. Prior to April 20, 1950, the date of the accident, appellee was asked by appellant to accompany him on a business trip to Washington, D. C. After some time spent in Washington the two began the return trip to Middlesboro, appellant driving his car; the trip ended as far as appellee was concerned, at some point on the Virginia highway. In his petition appellee charged that his injury was the result of gross negligence of appellant in the operation of his car. There is no allegation of 'willful neglect.' Following a general denial, appellant in defense pleaded contributory negligence, assumed risk, and lastly that under the Virginia Statutes, Michie's Code of Laws of Virginia, 1942, Sec. 2154(232) no recovery could be had unless it be shown that the injury was the result of gross or willful neglect of the owner or operator of the vehicle. That statute in substance reads:

'No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation * * * shall be entitled to recover damages against such owner or operator for * * * injuries to the person * * * of such guest resulting from the operation of such motor vehicle, unless * * * injury * * * resulted from the gross negligence or willful and wanton disregard of the safety of the person * * * being so transported on the part of such owner or operator.'

It was stipulated that the foregoing is a correct statement of the Virginia 'guest' law, and that in a case where recovery was had an injured person might be awarded such a sum as would compensate him for physical pain and suffering, impairment of earning power and medical expenses. It was proven that under the motor vehicle laws of Virginia, on highways of the type on which the accident occurred, the speed limit was fifty miles per hour, and that there were signs evidencing the speed limit.

Appellee's testimony went into great detail relating to the trip to Washington, the stay there and the return trip. The potent facts are briefly, that on the return trip appellant left the usually traveled highway in order to attend to some personal matter in Halifax. Some discussion was had as to whether they would break the journey by stopping for the night at Danville, Virginia, and they started in that direction. Later appellant suggested that they could 'get nearer home,' if the stop at Danville be abandoned, and the 'reasonable' speed was increased, according to appellee, to 'from sixty to sixty-five miles per hour.' The car at this rate came over a rise in the road, on a slight curve, and began to skid, first to the right then to the left; struck a tree on the right side and another on the left and came to a stop. Appellee says he later measured the distance from the start of the skidding to the point where the car stopped, and it was about 700 feet. A witness, who appeared on the scene shortly after the mishap, estimated that distance at 'from 200 to 250 yards.' The proof shows that the road was an ordinary black top road about 18 feet wide; that it had been raining during the day, and was 'raining some' at the time of the accident. It was stated by appellee, and the witness Moore that when appellant was asked, 'What happened'? he answered, 'I was driving too fast and ran off the road.' This was not denied.

Appellant's testimony fixed appellee's status as that of 'guest'; he admitted the lawful speed limit to be 50 miles per hour, and said he was 'trying to keep close to that limit.' He disagreed as to the distance the car traveled after it began to skid, estimating the distance at about 200 feet. He said he approached the curve at a speed of 48 or 49 miles per hour. However, as the case is presented to us, its determination rests mainly, if not altogether, on appellee's evidence.

Appellant in motion for a new trial charged that the court erred in giving instructions offered by appellee, in rejecting some of his tendered instructions, in admitting incompetent evidence and refusing to give the jury an instruction to find for him 'at the close of testimony for the plaintiff.' No such motion was made at the close of all the testimony.

However, as we read appellant's...