Fellows v. Sexton

• Decision Date: 26 February 1959
• Citation: 46 Tenn.App. 274,327 S.W.2d 391
• Court: Tennessee Court of Appeals
• Parties: Justin C. FELLOWS, Plaintiff in Error, v. Roy M. SEXTON, Defendant in Error.

Page 391

327 S.W.2d 391

46 Tenn.App. 274

Justin C. FELLOWS, Plaintiff in Error, v.Roy M. SEXTON, Defendant in Error.

Court of Appeals of Tennessee, Eastern Section.

Feb. 26, 1959 Certiorari Denied by Supreme Court June 10, 1959.

Donald E. Wright and Penn, Hunter, Smith & Davis, Kingsport, for plaintiff in error.

Harry L. Garrett, Kingsport, for defendant in error.

HALE, Judge.

This is a suit by a guest passenger against his host, the owner and operator of a motor vehicle, for personal injuries sustained in an accident which occurred in Scott County, Va., on May 3, 1957, around 8 P.M.

The rights of the parties are controlled by the lex loci embodied in Sec. 8-646.1 of the Virginia Code.It reads:

'Liability for death or injury to guests in motor vehicle.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 of such guests 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 declaration charges:

'The defendant, Justin C. Fellows, drove and operated the car in such a grossly reckless, negligent and careless way and manner as to cause it or permit it to run off the edge of the said public highway or off the main travelled portion of the said highway on the right hand side of the said road (and the car was wrecked and the plaintiff was badly injured).

'Plaintiff avers that the driver of the said car was not keeping a careful and proper lookout ahead on and along the said road at and before the time of wrecking of the car; that he was not watching the road nor where he was driving; that he did not have or keep the said car under control; that he recklessly and wantonly and carelessly failed to keep the car under proper control; that the highway at this point was comparatively straight; that there was no obstruction on the road; that there was no excuse for his letting the car run off the road at the time; that it was the duty of the defendant to keep a lookout ahead at all times along the said highway, which he did not do; that it was his duty to keep the car under control at all times, which he did not do; that it was his duty to keep the said automobile he was driving on the main travelled part of the said road which he did not do; that as a result of this negligence, the defendant ran or permitted the car to run off the road, when there was no good excuse for it; that the manner and way of driving constituted gross and wanton negligence and carelessness on the part of the defendant and that such neglience was the direct and proximate cause of the wrecking of the car and the injuries and damages to the plaintiff.'

Defendant plead that he was not guilty; that the automobile was not being operated in a gross, negligent or wilful manner; and that the accident was unavoidable.

Trial by jury resulted in a verdict in favor of plaintiff below for $3,500.He was seriously injured, sustaining a double fracture of his arm and had out of pocket expenses (medical and hospital bills and loss of time) of $3,440, with a residual permanent impairment of 25% in the use of his arm.The low verdict possibly indicates doubt as to liability.

The assignments of error, three in number, raise only one question, namely there was no material evidence showing the defendant was guilty of gross negligence and, therefore, his motion for a directed verdict should have been sustained at the close of all the proof.

The parties were friends and fellow employees of the Holston Defense Corporation of Kingsport and ran around together.On the afternoon of the day in question they drove in defendant's car from Kingsport to Johnson City, a distance of some 25 miles, and from there on to Bristol, another 25 miles, and after driving around a while they decided to go to Gate City, which is in Scott County, Va.When they left it was nighttime, and they drove along Va. Highway 58 westwardly towards Gate City.This road is very crooked with warning signs on it.

After having driven some 12 miles they came to a stretch of road perfectly straight for one-half mile.Both parties agree that the speed was from 40 to 45 miles per hour.Defendant below had done all the driving and no admonition or complaint was made by plaintiff.

At the end of this half mile straight stretch was a bridge immediately followed by a zigzag curve.Some distance east of this bridge and curve was a warning sign 'Maximum Safe Speed 25' and above it on the same post as a broken arrow sign indicating a sharp turn to the left, followed by a sharp turn to the right.Immediately west of the bridge was an arrow pointing to the left.

All of this appears from photographs filed in evidence, but there is no testimony that such existed at the time of the accident.However, we assume that the jury could have found they were in existence at that time.

The road at this point appears to be down grade, but there is no testimony as to the percentage of the grade.Nor is there any evidence as to the width of the highway.The road is divided by a white marker line and defendant was on his right side.

As they approached the bridge a car came from the opposite direction and they passed just as defendant was going into the bridge and the other car was coming out of it.After passing the bridge the defendant continued on his right side without slowing down and ran off the road and struck a rock at the side of the road some 90 to 100 feet from the western side of the bridge.This took only a matter of seconds.

Defendant claimed the approaching car blinded him and before he could get his eyes back in focus he ran off the road.The plaintiff testified the lights did not blind him; that it would have to have been on their side of the road to have blinded them.

There is no evidence that either party saw the warning or cautionary sign.The weather was fine, the road was dry, and both parties were sober.

The plaintiff testified:

'Well, me and Mr. Fellows was going down this straight-of-way and the car came around the curve down there, which would throw the lights into the bank, it didn't throw them in our faces, because it was going in a different direction.The car came around the curve and coming out of the bridge, in the vicinity of the outside of the bridge as we went through, and we went through and instead of Mr. Fellows making the turn in the road that he should have made, he froze and went into the bank there, into those rocks there.Mr. Fellows was driving too fast for the curve, got in it and couldn't get out.'

The defendant testified:

'We were on the stretch before the bridge, but the car came around, this is the best of my knowledge, through the bridge before I got to the bridge and the lights did blind me and it took some time for me to get the focus back.

'Then what occurred?

'I was trying to keep over as far as I could and I possibly was driving a little fast to go through the bridge, by not seeing the bridge and the car lights.

'When that occurred, when you went through the bridge, then what occurred?

'Well, I got through the bridge, but I was just over too far and the wheel went off in the ditch and that was it.

'Why were you moving over, what caused you to move over?

'Well, it is just natural I would say that, but going through the bridge at the speed that I was I just didn't get around it, but the car lights was blinding me or I would have slowed down in time.'

Thus it is that both parties admit the speed was excessive, but we add was not a violation of Virginia's speed limit.

The declaration does not charge excessive speed or that the accident occurred on a curve, unless indeed that is included in the charge that defendant was not keeping a lookout or watching the road and 'that he recklessly and wantonly and carelessly failed to keep the car under proper control'.However, the parties have treated this evidence as being germane to the issue, and so do we.

This, then, presents this question: Does excessive speed in rounding a sharp curve in and of itself authorize the finding of gross negligence?

We have some reported cases involving guest statutes of other states, but none on that of the Commonwealth of Virginia.SeeOlins v. Schocket, 31 Tenn.App. 346, 215 S.W.2d 18(Georgia);Hamilton v. Peoples, 38 Tenn.App. 385, 274 S.W.2d 630(Florida);andSchenk v. Gwaltney, Tenn.App., 309 S.W.2d 424(Indiana).

However, there are many Virginia decisions on the quoted statute.

In Alspaugh v. Diggs, 195 Va. 1, 77 S.E.2d 362, 364, there is a very thorough discussion of the applicable law.Said the Court:

'The question of gross negligence as distinguished from simple or ordinary negligence has been discussed at length in a great many Virginia cases involving automobile accidents, beginning wigh Boggs v. Plybon, 157 Va. 30, 160 S.E. 77, and continuing through Crabtree v. Dingus, 194 Va. 615, 74 S.E.2d 54.

'We said in Young v. Dyer, 161 Va. 434, 440, 170 S.E. 737, 739, that 'A mere failure to skillfully 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.'

'We have held in numerous cases that in order for a non-paying passenger to recover damages of the operator...