Gough v. Shaner, 4426

• Citation: 197 Va. 572,90 S.E.2d 171
• Decision Date: 28 November 1955
• Docket Number: No. 4426,4426
• Court: Virginia Supreme Court
• Parties: FRANK ROSSER GOUGH v. E. H. SHANER, ADMINISTRATOR OF THE ESTATE OF E. H. SHANER, JR., DECEASED. Record

Page 171

90 S.E.2d 171

197 Va. 572

FRANK ROSSER GOUGH v. E. H. SHANER, ADMINISTRATOR OF THE ESTATE OF E. H. SHANER, JR., DECEASED.

Record No. 4426.

Supreme Court of Appeals of Virginia

November 28, 1955.

Williams, Robertson, Sackett & Blackburn, for the plaintiff in error.

Basil G. Watkins, for the defendant in error.

JUDGE: MILLER

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

On the afternoon of March 4, 1954, a motorcycle operated by Jimmy B. Overstreet, aged fifteen years, upon which E. H. Shaner, Jr., aged thirteen years, was also riding collided at a street intersection in the city of Lynchburg with an automobile operated by Frank Rosser Gough. Young Shaner was instantly killed in the collision and E. H. Shaner, his father and administrator, brought an action against Gough under § 8-633, Code of 1950, to recover damages for the alleged negligent killing of decedent.

A verdict of $25,000 was returned by the jury against Gough and from the judgment confirming that award, we granted him an appeal.

Appellant's assignments of error are that the court erred in the giving and refusal of certain instructions. Though the evidence is not in dispute, these assignments require that the facts be briefly stated.

An ordinance in effect in the city of Lynchburg when the accident occurred, entitled 'Overloading Bicycles and Motorcycles,' reads as follows:

'It shall be unlawful for the operator of any motorcycle or bicycle to carry or transport thereon more persons than for which regular seats securely attached thereto have been provided; and it shall also be unlawful for any person to ride, or be transported upon, any such vehicle unless he or she occupy a regular seat.

'Any person operating or riding a motorcycle in violation of the provisions of this section shall be punished by a fine of not less than Five ($5.00) Dollars nor more than Twenty-five ($25.00) Dollars; any person operating or riding a bicycle in violation of the provisions of this section shall be punished by a fine of not less than One ($1.00) Dollar nor more than Five ($5.00) Dollars.'

Shortly before the accident Overstreet, who was operating his single-seated Harley Davidson motorcycle along Eleventh street, invited Shaner to ride with him. The operator permitted Shaner to occupy the seat and he moved forward and seated himself astride the gas tank between the seat and handlebars. He then operated the motorcycle from that position, and while proceeding along Eleventh street, his motorcycle collided at the intersection of Eleventh and Polk streets with defendant's car which was being driven along the latter street, and Shaner was killed.

Appellant concedes that the evidence is sufficient to prove that he was negligent in operating his automobile and that his negligence was a proximate cause of the collision. He, however, contends that by riding upon the single-seated motorcycle along with the operator, decedent violated the city ordinance. Appellant then asserts that he was entitled to have the court tell the jury that if, after taking into consideration decedent's age, intelligence, maturity, and experience, they believed that decedent knew, or in the exercise of reasonable care, should have known that it was dangerous to occupy the one-seated motorcycle with another person, then decedent's violation of the statute was negligence, and instruct them that if decedent's negligence proximately contributed to his death, plaintiff could not recover. This contention was embodied in instruction D, which was refused by the court. It follows:

'The court instructs the jury that at the time and place of the accident it was unlawful for plaintiff's decedent, E. H. Shaner, Jr., to ride or be transported upon the motorcycle then and there owned and operated by Jimmy Berkley Overstreet, unless there was a regular seat provided for him on said motorcycle. And if the jury believe from the evidence in this case that there was no regular seat provided for him upon said motorcycle and that in riding on said motorcycle under those circumstances plaintiff's decedent, taking into account his age, general intelligence, maturity and experience, knew, or in the exercise of reasonable care for his own safety should have known, of the danger in so doing, then he was guilty of negligence. And if the jury further believe from the evidence that such negligence either proximately caused or contributed to the death of plaintiff's decedent, then the plaintiff is not entitled to recover of the defendant in this case and the jury should find for the defendant.'

The ordinance relied upon by appellant must be strictly construed for its violation is made a criminal offense. Yet that rule of construction does not abrogate the well recognized canon that a statute or ordinance should be read and applied so as to accord with the purpose intended and attain the objects desired if that may be accomplished without doing harm to its language. Any construction that has the effect of impairing the purpose of the enactment or which frustrates, thwarts or defeats its objects should be avoided. Yet it should not be extended by interpretation or construction beyond the purpose intended by the enacting authorities.

'The purpose for which a statute is enacted is of primary importance in the interpretation thereof. Indeed, a statute is often regarded as speaking as plainly by means of the purpose which underlies it as in any other manner. In any event, in the interpretation of a statute of doubtful meaning, it is proper to take into consideration its purpose or object, or the aim, design, motive, or end in view * * *. ' 50 Am. Jur., Statutes, § 303, p. 283.

'It is elementary that in searching for the intention of the legislature the court must consider the object of the statute and the purpose to be accomplished. ' Rockingham Co-Operative Farm Bureau, Inc. v. City of Harrisonburg, 171 Va. 339, 344, 198 S.E. 908.

'In searching for the intention of the legislature, it is the duty of the court to consider the object of the statute and the purpose to be accomplished. A statute should have a reasonable construction so as to promote the end for which it was enacted.' 17 M.J., Statutes, § 38, p. 291.

The ordinance was designed and enacted to remove the danger incident to the operation of overloaded motorcycles and bicycles and to afford protection to the public by lessening the hazard incident to their operation upon the streets of the city.

Decedent knowingly occupied the single seat on the motorcycle, which was meant to be used by the operator and thereby caused the operator to seat himself elsewhere upon the vehicle and operate it with both of them riding thereon though it was equipped with a seat for but one. The purpose and intent of the ordinance were to prevent the operation of overloaded motorcycles, and decedent, as well as the operator, participated in the overloading of the vehicle and rode thereon, which necessarily resulted in its improper operation.

When the purpose and object of the ordinance are kept in mind and it is construed in accordance with the applicable canons of construction, we are brought to the inevitable conclusion that decedent, as well as the operator, violated its terms.

In instruction D the court does not tell the jury that decedent's violation of the ordinance constituted negligence per se which would have been unquestionably true had he been over the age of fourteen years. Standard Oil Co. v. Roberts, 130 Va. 532, 107 S.E. 838; Lavenstein v. Maile, 146 Va. 789, 132 S.E. 844; Crist v. Fitzgerald, 189 Va. 109, 52 S.E. (2d) 145; Atlantic Coast Line R.R. Co. v. Tyler, 124 Va 484, 98 S.E. 641; 13 M.J., Negligence, § 15, p. 520; 65 C.J.S., Negligence, § 19.

The instruction recognized decedent's immature age (thirteen years) and the usual resultant, rebuttable presumption that he was incapable of contributory negligence. Though he had violated the ordinance, yet the instruction would have permitted the jury to determine, after considering his age, intelligence, maturity and experience, whether or not in the exercise of reasonable care he knew or should have known of the danger of riding double on the motorcycle. If the jury concluded that decedent violated the ordinance in fact, and in view of his age, intelligence, maturity and experience, he was negligent in so doing, then the instruction also rightly left to the jury for it to determine the issue of whether or not his negligence in that respect proximately caused or contributed to his death.

Virginia applies the rule that the violation of a statute or ordinance by an adult is negligence per se. Yet it adheres to the principle that an infant between the age of seven and fourteen years is prima facie presumed incapable of negligence. Wash, Adm'r v. Holland, 166 Va. 45, 183 S.E. 236.

The precise question of whether or not the violation of a statute or ordinance by an infant under fourteen years of age is to be judged by the same standard as a violation by one of mature years and held to be negligence per se does not seem to have been decided in this jurisdiction. There is conflict of authority upon the status of infants in this respect among the states where the question has been presented. 174 A.L.R., 1166, 1174, 1190, 1194; 51 Dickinson Law Review 79. However, this instruction as asked for and refused did not state that decedent's violation of the ordinance, if proved, constituted negligence per se. If he in fact violated the ordinance, nevertheless it allowed the jury to take into consideration his age, intelligence, maturity and experience in determining whether or not such violation constituted negligence, and we hold that to be the correct principle. If he were guilty of negligence, then the further issue of whether or not that negligence proximately caused or contributed to his death was also properly submitted to the jury.

Clearly appellant was entitled to an instruction embodying these...