Lewellyn v. El Al.

• Decision Date: 23 September 1930
• Docket Number: (No. 6677)
• Court: West Virginia Supreme Court
• Parties: Della Lewellyn v. Edward D. Shott el al.

109 W.Va. 379

Della Lewellyn

v.Edward D. Shott el al.

(No. 6677)

Supreme Court of Appeals of West Virginia.

Submitted September 16, 1930.

Decided September 23, 1930.

1. A guest in a private automobile is obliged to exercise such care as an ordinarily prudent person, riding with another, would exercise for his own safety under the same or similar circumstances.

2. The owner or operator of a private automobile is not a guarantor of the safety of his guest. The exercise of reasonable care by the host is the requirement of the law.

3. A gratuitous passenger in a private automobile accepts the automobile as he finds it, subject to the duty of his host to warn him of any known dangerous defect. The necessity of such warning by the host is obviated where the existence of the defect is otherwise made known to the guest in the host's presence.

4. Where, on the merits of the case, the defendant is entitled to & directed verdict, but his request therefor is overruled by the trial court and a nominal verdict is returned against him by the jury, which verdict he is willing to accept, and opposes plaintiff's motion to set the same aside, it is error, prejudicial to the defendant's rights for the trial court to set aside such verdict; and, on writ of error the court's order setting aside the verdict will be reversed, and judgment rendered upon the verdict.

Error to Circuit Court, Mercer County. Action by Delia Lewellyn against Edward D. Shott and others. Judgment for plaintiff, defendant prosecutes error.

Reversed and rendered.

Sanders, Crockett, Fox & Sanders, for plaintiff in error. Kee & Lubliner, Harold F. Porterfield and Russell S. Ritz, for defendant.

Maxwell, Judge:

Over objection of the defendants a verdict for one dollar in favor of the plaintiff was set aside on her motion. The defendants prosecute this writ of error.

Plaintiff suffered personal injuries while a guest of the defendant, Mrs. Edward D. Shott, in an automobile driven by her, owned by her husband, Edward D. Shott, the other defendant. Plaintiff's injury was due to an accident on the public road caused by the steering gear of the Shott automobile being out of repair. The two women were jointly engaged in selling a cleaning preparation, and had made frequent trips together in Mercer and McDowell counties, in the same automobile in which the accident occurred.

The theory of plaintiff's case is that both of the defendants knew that the steering gear of the automobile was out of repair and that it was negligence on their part to permit the car to be used while in that condition, and, more particularly, if Mrs. Shott saw fit to use the car in that condition it was her duty to warn Mrs. Lewellyn of the danger. There is no evidence that Mrs. Shott was driving with excessive speed or otherwise carelessly immediately prior to the automobile's leaving the road and going over an embankment,

On the day preceding the accident, Mrs. Shott had noticed a looseness in the steering gear, and as a consequence on that evening the car was taken by Mr. Shott to a garage for inspection. Mrs. Shott says the garage man examined the steering apparatus and requested that the car be brought back the next day, but said that he didn't think it was dangerous. It does not appear how she received this information, that is, whether she was with her husband at the time or whether he reported to her what the garage man had said, and, if he did report to her, whether he reported before the accident or thereafter. Neither her husband nor the garage man testified in the case. In the light of the failure of the evidence to make this point clear, we need not give much concern to what transpired the evening before except to observe that if Mrs. Shott in fact was told by the garage man that he did not think the car "was dangerous at all" or if she was told by her husband that the garage man had so stated, before she started on her trip the next morning, it must be assumed that she relied on that in- formation and consequently that she did not believe there was danger in using the car. True, the garage man is also said to have requested that the car be brought back the next morning, but that request or instruction was of secondary importance if he also said that the car was not in dangerous condition for use, The car was not returned to the garage the following day, but, instead, Mrs. Shott and Mrs. Lewellyn started to drive to Rolfe, McDowell County, in furtherance of their business as saleswomen for the Bluefield Supply Company. Before leaving Bluefield, where the women both resided, Mrs. Shott drove the car to the Tri-State Filling Station and purchased some gasoline and oil. While there she requested George Kitts, one of the attendants at the station, to examine the steering gear of the car, she saying to him that there was a slight noise or click in the gear. He looked at it, and, according to his testimony, told her that from outward appearance, it was safe. Mrs. Shott says that Kitts "gave it a thorough examination, and said there wasn't any danger in the car, us driving it." Mrs. Lewellyn was sitting by.the side of Mrs. Shott and heard and saw what transpired at the filling station, but she says she did not pay attention. Following the accident, which occurred later in the morning, Mrs. Shott said, in substance, to a Mrs. Mathews,...