Gale v. Wilber

• Decision Date: 20 September 1934
• Citation: 175 S.E. 739
• Court: Virginia Supreme Court
• Parties: GALE et al. v. WILBER.

175 S.E. 739

GALE et al.

v.WILBER.

Supreme Court of Appeals of Virginia.

Sept. 20, 1934.

Error to Circuit Court, Norfolk County.

Action by Dorothy M. Wilber against Roy W. Gale and another. To review a judgment for plaintiff, the defendants bring error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and BROWNING, JJ.

Eastwood D. Herbert, of Norfolk, for plaintiffs in error.

Vivian L. Page and H. O. Stickney, both of Norfolk, for defendants in error.

BROWNING, Justice.

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, 1032. 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 10:30 and 11 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 the right rear seat by the side of the plaintiff, and Mrs. L. M. Payette, seated on the front right seat with the defendant Ethel M. Gale, who was driving the car. These three ladies were visiting in the home of Ethel M. Gale earlier in the evening of June 11th, and Mrs. Gale asked them if they would like to go with her to meet her husband about 10:30 or 11 o'clock that night. It seems that her husband works for the C. & O. Railway Company and she had to go to meet him at the boat landing. She did not relish going alone; hence her invitation to these ladies to accompany her. They wished to make another call, which they did. Mrs. Gale, driving by the home where they were calling, blew her horn and they came out and started on the trip referred to. They went west on Simpson street to Fairview avenue, or boulevard. The boulevard runs nearly north and south. Simpson street is fifty feet wide, but only the southern portion of it is macadamized and this portion is twenty feet wide. The travel, of course, was on this macadam portion. The street ends at Fairview boulevard. The latter is a wide and much-traveled thoroughfare between Ocean View and the city of Norfolk, through the center of which runs the right of way of the Virginia Electric & Power Company, which has its tracks projected along this right of way. The macadam portion of Simpson street ends where it strikes the boulevard at a place opposite a crossing over the car tracks. The northern portion of the boulevard is sixteen feet wide and is the traveled portion of the boulevard for those going north to Ocean View. Just beyond this part of the boulevard, approaching the crossing, is an asphalted incline extending up to the first rail of the north-bound track of the street railway. There is a conflict in the evidence as to just where, on the macadam portion of Simpson street, Mrs. Gale was driving. The weight of the testimony rather justifies the conclusion that she was driving further to the left of the road than she should lawfully have been. She approached the boulevard at a rate of speed of about twenty miles per hour, and when she reached it she paused or slowed up, having seen the lights of a car which appeared to be rapidly approaching the intersection. She crossed the sixteen-foot portion of the boulevard, and when the front wheels of her car were on the first rail of the north-bound track of the street railway, it was struck on the extreme rear of the left-hand fender by a Chevrolet automobile, which was driven by a boy seventeen years old, named Ernest Lyons, but which was owned by a Mr. Beck. The impact forced the Gale car a short distance up the track to a point on the track near a crossing sign post, the car coming to rest on the eastern track facing southwardly. The Chevrolet car went abouthalf a block on the boulevard before it was stopped.

The plaintiff, Mrs. Wilber, sustained injuries which were quite serious, consisting in part of four fractured ribs and a punctured lung, from which she was confined in a hospital for some eighteen days and to her bed at her home for several weeks afterward.

The testimony as to some important facts, including the distance of the Chevrolet car from Mrs. Gale's car when she saw, by its lights, that it was approaching the intersection, the exact position of Mrs. Gale's car when it was struck, the speed of the Chevrolet car, and whether its driver had sufficient room to turn to his right, out Simpson street, and avoid the injury, or whether there was sufficient street room for him to have passed Mrs. Gale's car without striking it, is quite conflicting. A significant part of the testimony tending to confirm the contentions of the defendants is the admission of the boy that his car was skidding at the time of the accident and that he lost control of it. The case, however, was a typical one for the decision of a jury upon proper instructions by the court.

The question of the status of the plaintiff toward the defendants is controverted sharply and becomes very important in determining the measure of care due the plaintiff by the defendants and their duty to her in legal intendment, and upon this determination depends the question of the correctness of the instructions granted by the trial court. The assignments of error involve these considerations, among some others which we shall not discuss.

The plaintiff contends that she was a passenger in the defendants' automobile, and therefore the high degree of care fixed by law was due her, or less negligence upon the part of the defendants would make them liable, than if she were simply a guest of Mrs. Gale while riding in the automobile. The defendants take the position that Mrs. Wilber was a guest and, that being true, only gross negligence upon their part would warrant any recovery against them.

The term "passenger, " in its legal sense, imports some contractual relation between the parties. As to the meaning of the term "guest, " there is some contrariety of expression and opinion among the decisions of those states which have dealt with the relation involved in the term.

The Massachusetts court, in our opinion, has evolved the soundest interpretation of its meaning. In the case of Massaletti v. Fitz roy, 228 Mass. 487, 118 N. E. 108, L. R. A. 1018C, 264, Ann. Cas. 1918B, 1088, a guest claimed to be a passenger as she was riding at the invitation and for the accommodation of the owner of the automobile. The court held that she was a guest. In the case of Flynn v. Lewis, 231 Mass. 550, 121 N. E. 493, 494, 2 A. L. R. 896, the defendant asked a friend to accompany his daughter to a city to help the latter purchase a coat. The friend was killed on the way. The court held that there was an absence of any contractual relation between the parties which would take the case out of the guest rule. The lower court declined to instruct the jury that such a service was a consideration for the ride. The appellate court affirmed the judgment, saying: "The element of any pecuniary benefit or gain to the defendant being absent, the transaction was gratuitous, under which he is liable only for gross negligence in the operation of the automobile."

In the case of Jacobson v. Stone, 277 Mass. 323,...