Lipscomb v. O'brien

• Decision Date: 26 April 1943
• Citation: 25 S.E.2d 261,181 Va. 471
• Court: Virginia Supreme Court
• Parties: LIPSCOMB . v. O'BRIEN.

25 S.E.2d 261

181 Va. 471

LIPSCOMB .

v.O'BRIEN.

Supreme Court of Appeals of Virginia.

April 26, 1943.

Error to Law and Equity Court of City of Richmond; Willis D. Miller, Judge.

Action by B. Monroe O'Brien against William D. Lipscomb for personal injuries sustained by plaintiff while riding as a guest in defendant's automobile. Judgment for plaintiff, and defendant brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

Parrish, Butcher & Parrish, of Richmond, for plaintiff in error.

Thomas A. Williams and L. C. O'Connor, both of Richmond, for defendant in error.

GREGORY, Justice.

In the court below B. Monroe O'Brien instituted an action against William D. Lipscomb for personal injuries received when the latter's car, in which Mr. O'Brien was a guest, left the roadway and collided with a tree. A verdict and judgment were recovered in favor of Mr. O'Brien for $5,000.

The plaintiff and the defendant lived at. Highland Springs, near Richmond, but worked in the navy yard at Washington, D. C. They usually drove to their homes for the week ends. On the day of the accident Mr. Lipscomb was using his car and invited Mr. O'Brien to go with him. They were joined by a Mr. Barnett.

Mr. Lipscomb roomed at the home of Mrs. Hammond in Washington. She testified that on the 19th day of April, 1941, the day of the accident, he was working on the night shift and that he did not come to his room until 3:30 P.M. on that day. She testified that at the request of Mr. O'Brien she awakened Mr. Lipscomb around 5 P.M., and this gave him time for only one and a half hours sleep during the prior twenty-four.

They left Washington after 5 P.M. and were driving on U. S. Highway No. 1 about one mile north of Ashland where the accident occurred at 8 o'clock that night. It was raining and the road was wet. As they approached a curve Mr. Lipscomb did not seem to apprehend it. Mr. O'Brien halloed at him four or five times telling him to watch for the trees. He aroused, the car "speeded up", then he applied the brakes and the car turned completely around two or three times in the road and collided with a tree. This resulted in the injuries to Mr. O'Brien. The car was being driven at 50 to 55 miles per hour just before the curve was reached and before the speed was increased. There is ample evidence that Mr. Lipscomb was asleep at the steering wheel immediately before the accident.

Counsel for the plaintiff in error vigorously argues that there was a material variance between the allegation in the declaration and the proof. The allegation was: "Yet, the said defendant, disregarding his said duty and duties, on or about the 19th day of April, 1940, carelessly, culpably and with gross negligence ran and operated his said automobile southwardly on the said highway, Route #1, without exercising proper care and caution, without having his said automobile under proper control, at a high, dangerous and excessive rate of speed under the circumstances and conditions then existing, without keeping a proper lookout and failed to properly and timely apply the brakes on his said automobile, and did operate the same on the wrong and improper side of said highway and violated the traffic laws for such cases made and provided, and as a direct result thereof ran his said automobile off of the left-hand and wrong side of said highway into a tree, whereby the plaintiff, a passenger in said automobile, was grievously and seriously injured. * * *"

Counsel contends that the failure of the plaintiff to specifically allege that the defendant was asleep at the time of the accident prevents him from grounding his recovery upon that fact.

At the time of the completion of the plaintiff's evidence the defendant moved to strike all the evidence tending to show that the defendant was asleep at the time because this had not been alleged as a ground of recovery. The motion was overruled. It was renewed after the completion of all the evidence and again overruled.

The declaration specifically alleges, among other things, that the defendant failed to keep a proper lookout, but counsel for the defendant asserts that the allegation of failure to keep a proper lookout does not embrace or include the charge of failure to keep awake while driving. In other words, they contend that a recovery could have been predicated upon (1) defendant's failure to keep a proper lookout or (2) his negligence in permitting himself to go to sleep while driving. They claim that in the absence of any allegation of the defendant being asleep at the wheel, no recovery could be had for that negligence and there being no other evidence of gross negligence, the variance was fatal and now requires a reversal of the judgment.

It is conceded that counsel for the plaintiff in his opening statement to the jury made known that the plaintiff would rely on the negligence of the defendant in going to sleep while driving. Therefore, the defendant was not taken by surprise.

It is quite true that the allegations and the proof must correspond, however, in Virginia the old technical rules of common law pleading have been substantially relaxed and now a general allegation of...