Jones v. Massie

• Court: Virginia Supreme Court
• Writing for the Court: Chinn, J.
• Citation: Jones v. Massie, 158 Va. 121, 163 S.E. 63 (1932)
• Decision Date: 24 March 1932
• Parties: D. M. JONES v. P. M. MASSIE.

Page 121

158 Va. 121

D. M. JONES v. P. M. MASSIE.

Supreme Court of Virginia, Richmond.

March 24, 1932.

Present, Campbell, C.J., and Holt, Epes, Browning and Chinn, JJ.

1. BAILMENTS — Gratuitous Bailment — Measure of Duty of Gratuitous Bailee. — Justice requires that the one who undertakes to perform a duty gratuitously should not be under the same measure of obligation as one who enters upon the same undertaking for pay. There is an inherent difficulty in stating the difference between the measure of duty which is assumed in the two cases. But justice requires that to make out liability in case of a gratuitous undertaking the plaintiff ought to prove a materially greater degree of negligence than he has to prove where the defendant is to be paid for doing the same thing.

2. AUTOMOBILES — Guest — Liability of Host to Guest — Duty of Host — Assumption of Risk by Guest. — To hold that a guest who, for his own pleasure, is driving with his host, may recover from him for injuries suffered where there is no culpable negligence, shocks one's sense of justice. The driver makes no implied representations beyond that he will not knowingly or wantonly add to the perils ordinarily to be expected and that there are no known defects in the car which make its operation particularly hazardous. He should disclose to his guest any other peril not patent. Beyond this all risks are assumed by the guest.

3. EVIDENCE — Uncontradicted Evidence of Party — Party Entitled to Benefit of His Own Testimony. — A party is entitled to the benefit of his uncontradicted testimony, not being incredible on its face, even though the question involved must be considered as upon a demurrer to the evidence.

4. AUTOMOBILES — Streets and Highways — Assumption that Street is in Reasonably Safe Condition — Duty to Look out for Defects in Streets. — The law is well settled that a person using a street or public way in the ordinary manner has the right, in the absence of knowledge to the contrary, to act on the assumption that the street or way, throughout its entire width, or so much of it as is intended for travel, is in a reasonably safe condition, and he is not required as a matter of law to be on the lookout for defects or obstructions therein.

5. AUTOMOBILES — Liability of Host for Injuries to Guest — Guest Injured by Unexpected Bump when Crossing a Street — Case at Bar. — The instant case was an action by a guest against his host for injuries received when the guest was thrown against the top of the car when driving over a depression at a street intersection. The parties were driving in a strange city in defendant's car and in passing along a street at its intersection with another street they drove over a "flat gutter" or depression in the pavement, placed there to take off the drainage from that area. It was agreed that defendant was driving at a reasonable rate of speed — about twenty-five miles an hour. None of the occupants of the car observed the depression, but it was contended by plaintiff that defendant's failure to observe the conditions in time to avoid the accident constituted such negligence as to render him liable to plaintiff. Defendant's uncontradicted testimony was to the effect that he was looking for a turn, as he had been directed, but also had the general surface of the street in view, and that the surface of the street was apparently all right; that he observed the intersection, but saw nothing which attracted his attention except that there was traffic passing in both directions. Therefore, defendant's attention was engaged not only in looking out for his turn, but also in keeping a lookout for passing traffic.

Held: That as a matter of law defendant could not be held guilty of that degree of negligence which would render him pecuniarily liable for the accident sustained by the plaintiff. There was no evidence to indicate that in failing to see the conditions at the crossing in time to avoid the injury, he "knowingly or wantonly" added to the risks which plaintiff, as his guest, had assumed.

Error to a judgment of the Circuit Court of the city of Lynchburg, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Sinnott, May & Leaman, for the plaintiff in error.

Fred Harper and Thos. J. O'Brien, for the defendant in error.

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

This action was brought by P. M. Massie, the defendant in error, against D. M. Jones, the plaintiff in error, to recover damages for personal injuries sustained by Massie while riding as a guest in an automobile owned and operated by Jones. There was a verdict and judgment in favor of the plaintiff below for the sum of $8,500.00 to which Jones obtained this writ of error.

It is alleged in the petition that the trial court erred: (1) In denying the motion of the defendant below to strike out all the evidence, and (2) in refusing to set aside the verdict and enter final judgment for the defendant. Both of these assignments are based upon the ground that there was no evidence of primary negligence on the part of the defendant, and, therefore, present the same question for the consideration of this court.

The evidence is without material conflict. Both parties live in Lynchburg, whence they had driven in Mr. Jones' car on a week-end trip to Virginia Beach. On the day the accident occurred, accompanied by two young ladies, Miss Lutz and Miss Clark, the parties motored in Mr. Jones' car from Virginia Beach to Ocean View, and on leaving there, decided to return to Virginia Beach by way of Norfolk. Miss Lutz and Mr. Massie were riding in the rear seat of the car, and Miss Clark was in the front seat beside Mr. Jones, who was doing the driving. On arriving in Norfolk, all of the party being strangers in the city and not knowing how to get back to Virginia Beach, they finally found themselves on Chapel street, where they stopped and made inquiries. They were told to turn at a specified corner and drive back on Chapel street, and turn to the left when they reached Princess Anne road, which would take them directly to Virginia Beach. Following these directions Mr. Jones drove along Chapel street in a northerly direction until he came to Henry street, which intersects Chapel street at right angles. Chapel street, including the intersection, is paved with concrete and is thirty-two feet wide. Henry street is twenty-six feet wide, and running down the center is a single-track unused street railway line. With the exception of a few slight irregularities, the rails are laid on a level with the street. Between the rails is paved with red brick. On each side of Henry street, and crossing Chapel street, is a "flat gutter," or depression in the pavement, placed there by the city to take off the drainage from that area. In crossing Henry street from Chapel street in either direction, the depression slopes gradually toward the railway track for a...