Gale v. Wilber

• Citation: 163 Va. 211
• Parties: ROY W. GALE AND ETHEL M. GALE v. DOROTHY M. WILBER.
• Decision Date: 20 September 1934
• Court: Virginia Supreme Court

Page 211

163 Va. 211

ROY W. GALE AND ETHEL M. GALE v. DOROTHY M. WILBER.

Supreme Court of Virginia, Staunton.

September 20, 1934.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

1. AUTOMOBILES — Action against Driver and Owner of Automobile for Injuries to Occupant — Import of Term "Passenger" — Liability of Host to Guest — Case at Bar. — The instant case was an action by plaintiff against the driver and owner of an automobile for injuries to plaintiff caused when the automobile was struck by another car. Plaintiff, who lived in the same apartment house with defendants, was on friendly terms with them and had frequently ridden with the driver, was invited by her to go with her to meet her husband. Plaintiff contends she was a passenger so that more care was due her than to a guest, while defendants contend she was a guest so that only gross negligence will warrant a recovery against them.

Held: That the term "passenger," in its legal sense, imports some contractual relation between the parties, and there appears to be nothing in the relations and conditions of the parties to create any contractual relation between plaintiff and the driver which would take the case out of the guest doctrine laid down in Boggs Plybon, 157 Va. 30, 160 S.E. 77, and Jones Massie, 158 Va. 121, 163 S.E. 63.

2. AUTOMOBILES — Reckless Driving — Definition under Motor Vehicle Statute Inapplicable in Tort Action — Case at Bar. — The instant case was an action by a guest against the owner and the driver of an automobile to recover for injuries suffered when the automobile was struck by another car at a street intersection. There was evidence tending to show that prior to the accident the driver was driving further to the left than she should have been. The court granted an instruction for plaintiff to the effect that under the law it is reckless driving to drive to the left of the center of the road and if the female defendant drove to the left of the center of the street she was guilty of negligence and if such negligence was the proximate cause of plaintiff's injury the jury should find for plaintiff.

Held: That the instruction correctly defines "reckless driving," in the terms of the statute regulating the operation of motor vehicles on the highway, but it was error to give it in the instant case.

3. AUTOMOBILES — Reckless Driving — Term as Used in Motor Vehicle Statute Has No Reference to Law of Torts. — "Reckless driving," as used in the statute regulating the operation of motor vehicles on highways, is not used with reference to the law of torts, and whether an act or omission which is a violation of this statute constitutes recklessness (in the sense of wantonness) within the purview of the law of torts depends upon the facts and circumstances of the case, and not upon its classification in this statute under the class denominated "reckless driving."

4. AUTOMOBILES — Liability of Driver to Guest — Instructions — Error in Instruction Not Cured by Mere Reference to Other Instructions — Case at Bar. — The instant case was an action by a guest against the owner and operator of an automobile to recover for injuries suffered in an accident which occurred when the defendants' car was struck by another at a street intersection. The court instructed the jury, for the plaintiff, that under the law it is reckless driving to drive to the left of the center of the street and if the driver did so then she was guilty of negligence and if the jury believed that such negligence was a proximate cause of plaintiff's injury they should find for plaintiff. The instruction contained a reference by number to two other instructions, one of which was to the effect that plaintiff must prove by a preponderance of the evidence that the driver was guilty of gross, wanton, or culpable negligence directly and proximately causing the accident, and the other to the effect that a guest riding in an automobile assumes all risks ordinarily incident thereto, and that plaintiff, in order to recover, must prove that the driver knowingly or wantonly added to the ordinary risks assumed.

Held: That the bare reference without more to these two instructions failed to cure the vice of the first instruction and tended to confuse the jury.

5. AUTOMOBILES — Instructions — Failure of Driver to Keep Lookout — Instruction without Basis in Evidence Erroneous — Case at Bar. — In the instant case, an action by a guest against the owner and the operator of an automobile to recover for injuries suffered in an accident which occurred when defendants' car was struck by another at a street intersection, the court instructed the jury, for plaintiff, that it was the duty of the female defendant, the driver, to keep a proper lookout and if she failed to do so she was guilty of negligence and if the jury believed such negligence was the proximate cause of the injury they should find for the plaintiff.

Held: That such instruction was erroneous because there was no evidence on which to predicate it, there being no evidence that the driver was not keeping a proper lookout.

6. AUTOMOBILES — Liability of Driver to Guest — Instruction Requiring Driver to Keep Car under Complete Control Erroneous — Case at Bar. — The instant case was an action by a guest against the owner and operator of an automobile to recover for injuries suffered in an accident which occurred when the defendants' car was struck by another at a street intersection. The court instructed the jury, for the plaintiff, that it was the duty of the driver to keep her car under complete control at all times under every condition and that if she failed to do so then she was guilty of negligence and that if the jury believed that such negligence was a proximate cause of the injury then they should find for the plaintiff. The instruction contained a reference by number to two other instructions, in one of which the jury was told of the degree of care owed by the driver of an automobile to an invited guest and in the other of the risks which such guest assumed.

Held: That the instruction was erroneous first, because there was no evidence that the driver did not keep her automobile under proper control, and in the second place, its conditions are impossible of performance. No human being can keep his automobile in complete control while it is in motion. The reference to the two instructions referred to does not meet the objections.

7. AUTOMOBILES — Action by Guest against Owner and Driver — Instruction Referring to Other Instructions by Number Only — Case at Bar. — In the instant case, an action by a guest against the owner and operator of an automobile for injuries suffered when the automobile was struck at a street intersection by another car, the court instructed the jury that if they believed that plaintiff was injured as a result of the concurring negligence of the defendants their verdict should be for plaintiff against all of the defendants, but that the instruction must be read in connection with instructions 1 and 2. The instructions referred to were in regard to the degree of care owing to a guest in an automobile and the risks which such guest assumes.

Held: That the instruction should have been clarified in its connection with the instructions referred to, and this not having been done, it is subject to the criticism of being misleading and confusing and constitutes error.

8. AUTOMOBILES — Action by Guest against Owner and Driver — Driver Liable Only for Gross Negligence — Instructions — Case at Bar. — In the instant case, an action by a guest against the owner and operator of an automobile for injuries suffered when the automobile was struck at a street intersection by another car, the court instructed the jury that the driver of an automobile owes to a guest therein the duty to exercise ordinary care not to increase the danger nor add a new one to those she assumed on entering the car, and while the same high degree of care may not be demanded as by a passenger who pays for her ride, yet the guest has the right to demand of the driver that a lookout be kept, that an excessive speed shall not be maintained and that the laws of the road be observed, and that the omission to perform these duties plainly increases the danger which the guest assumed upon entering the automobile and adds new ones.

Held: That the instruction was erroneous since all of its conditions might be breached and the party breaching them would not be guilty of gross negligence (so as to render him liable to the guest) under the principles announced in Boggs Plybon, 157 Va. 30, 160 S.E. 77, and Jones Massie, 158 Va. 121, 163 S.E. 63.

Error to a judgment of the Circuit Court of Norfolk county. Judgment for plaintiff. Defendants assign error.

The opinion states the case.

Eastwood D. Herbert, for the plaintiffs in error.

Vivian L. Page and H. O. Stickney, for the defendant in error.

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

This case grew out of an automobile accident which happened in Norfolk county, just outside of the Norfolk city line.

The defendant in error, Dorothy M. Wilber, was the plaintiff in the trial court. She instituted suit claiming damages for personal injuries and obtained a verdict against the plaintiffs in error, who were defendants in the trial court, for damages in the sum of $7,500, which verdict was reduced by the court to $5,000, and judgment was entered thereon on December 8, 1932. Plaintiff accepted the reduction in the amount of the verdict, but under protest, and excepted to the judgment and ruling of the court.

On June 11, 1932, between ten-thirty and eleven o'clock, P.M., the plaintiff was riding in a car owned by Roy W. Gale, the defendant, and operated by Ethel M. Gale, the defendant, his wife. Plaintiff was seated on the left hand rear seat of the Ford sedan, which was occupied by two other ladies besides the driver of the car. These were Mrs. Temple Cook, seated on...