Garrett v. Hammack

• Decision Date: 22 March 1934
• Citation: Garrett v. Hammack, 162 Va. 42, 173 S.E. 535 (1934)
• Court: Virginia Supreme Court
• Parties: JOHN T. GARRETT v. GERTRUDE V. HAMMACK, ET AL.

Page 42

162 Va. 42

JOHN T. GARRETT v.GERTRUDE V. HAMMACK, ET AL.

Supreme Court of Virginia, Richmond.

March 22, 1934.

Present, All the Justices.

1.AUTOMOBILES — Liability of Driver to Guest — Liability of Driver to Passenger — Case at Bar.— The instant case was an action for personal injuries received in a collision between an automobile and a bus, against the driver of the automobile.If plaintiff was a guest of the driver of the automobile, then her right of recovery against him depended upon his gross negligence.If plaintiff was a passenger, then it was only incumbent upon her to show that the driver was guilty of ordinary negligence.

2.AUTOMOBILES — Passenger in Automobile — Case at Bar.— The instant case was an action for personal injuries received in a collision between an automobile and a bus, against the driver of the automobile.Plaintiff was living in the family of the driver of the automobile and working in his stores.She received $3.00 a week, meals, room and transportation.On the particular morning when the accident occurred she was coming in for employment at the stores in an automobile driven by her employer.The driver admitted that plaintiff was given $3.00 a week as compensation for services performed by her in the home and in the stores and that she was being transported to the stores on the morning of the accident.

Held: That the jury was warranted in finding that plaintiff was a passenger in the automobile of the driver and that her right to recover against the driver should be based upon proof of ordinary negligence.

3.AUTOMOBILES — Negligence — Question for the Jury — Case at Bar.— The instant case was an action by plaintiff against the Virginia Electric and Power Company and her employer to recover for personal injuries received by her as a result of a collision between the automobile of her employer, in which she was riding as a passenger, and a bus owned and operated by the Virgina Electric and Power Company.The question of whether or not the Virginia Electric and Power Company was guilty of negligence which contributed to or was the proximate cause of the accident was one solely for the jury on a conflict of evidence, and the Supreme Court of Appeals was bound by the verdict of the jury in favor of the company.

4.AUTOMOBILES — Collision — Action for Personal Injuries to Passenger Arising out of Collision — Case at Bar.— The instant case was an action for personal injuries received in a collision between an automobile and a bus, against the driver of the automobile, by plaintiff, a passenger in the automobile.The driver of the automobile was exceeding the speed limit in force in the business district of the city where the accident occurred.The jury, under proper instructions based upon sufficient evidence, found that the negligence of the driver was the sole proximate cause of plaintiff's injuries.The verdict of the jury was approved by the trial court.

Held: That plaintiff was entitled to recover against the defendant.

Error to a judgment of the Circuit Court of the city of Portsmouth, in a proceeding by motion for a judgment for damages against the driver of an automobile and the Virginia Electric and Power Company.Judgment for plaintiff against the driver of the automobile.The driver of the automobile assigns error.

The opinion states the case.

Harvey E. White, for the plaintiff in error.

Vincent L. Parker, James G. Martin, Tom E. Gilman, Venable, Miller, Pilcher & Parsons, T. Justin Moore and A. G. Robertson, for the defendants in error.

CAMPBELL, C.J., delivered the opinion of the court.

This is an action by notice of motion brought by Gertrude V. Hammack to recover for personal injuries received by her as a result of a collision between the automobile of John T. Garrett and a bus owned and operated by the Virginia Electric and Power Company.Garrett and the company were both impleaded as defendants.

There was a trial by a jury, which resulted in a verdict for the plaintiff against Garrett in the sum of $1,000.

The notice alleges that plaintiff was a passenger in the automobile of Garrett; that at the time of the collision which occurred at the intersection of High street and Elm avenue in the city of Portsmouth, both machines were being operated in a careless, reckless and negligent manner, in that neither of the drivers was keeping a proper lookout; neither of the machines was equipped with proper brakes; the drivers failed to keep said machines under proper control and operated them at a dangerous and excessive speed.

The grounds of defense relied upon by Garrett are as follows:

"The defendant, John T. Garrett, gives the following as and for his grounds of defense:

"1.All defenses properly provable under the plea of the general issue.

"2.He denies each and every allegation of negligence with which he is charged in the notice of motion and bill of particulars filed herein.Particularly any allegation of gross negligence.

"3.On the contrary, he alleges that he was operating his automobile with due care and doing all that the law required of him at the time of the accident.

"4.He further denies that he had a last clear chance to avoid the accident.

"5.He denies any violation of the ordinances of the city of Portsmouth or statutes of the State of Virginia.

"6.He alleges that the accident was caused solely as a result of the negligent operation of the bus of the Virginia Electric and Power Company, in that the driver failed to keep a proper lookout, failed to have and keep his bus under complete control, negligently speeded up to cross in front of Garrett's car, failed to yield the right of way, was traveling at an unlawful and improper rate of speed, driving on the improper side of the street, and had a last clear chance to avoid the accident."

The company defended on the ground that plaintiff was guilty of negligence:

"1.In not warning the driver of the Garrett car that he was driving at a dangerous and reckless rate of speed "2.In not warning the driver of the Garrett car of the approach of the bus;

"3.In failing to exercise all of her faculties for her own safety.

"And further, the Virginia Electric and Power Company denies each and every allegation of negligence contained in the notice of motion and in the bill of particulars, so far as the allegations relate to the Virginia Electric and Power Company."

In the petition for a writ of error, the claim is made that at the time of the collision plaintiff was "riding as a guest in the automobile owned and operated by John R. Garrett."

If the plaintiff was a guest of Garrett, then her right of recovery against him must be founded upon the doctrine announced by this court in the cases of Boggs Plybon, 157 Va. 30, 160 S.E. 77;Jones Massie, 158 Va. 121, 163 S.E. 63;andYoung Dyer, 161 Va. 434, 170 S.E. 737, viz., that the host must have been guilty of gross negligence.If the plaintiff was a passenger in the automobile of Garrett, then it was only incumbent upon her to show that Garrett was guilty of...