Morris v. Dame's ex'R

• Decision Date: 16 November 1933
• Citation: 161 Va. 545
• Court: Virginia Supreme Court
• Parties: L. HUNTER MORRIS, JR. v. F. C. DAME'S EXECUTOR AND THE TOWN OF CHRISTIANSBURG.

Page 545

161 Va. 545

L. HUNTER MORRIS, JR. v. F. C. DAME'S EXECUTOR AND THE TOWN OF CHRISTIANSBURG.

Supreme Court of Virginia, Richmond.

November 16, 1933.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

1. STREETS AND HIGHWAYS — What Constitutes a "Highway" — Freight-Yard Road. — A freight-yard road, though not a State or county road, was "open to the use of the public for the purpose of vehicular travel" and was much used by the public in going to and from the railroad freight yard and the plants situated along it.

Held: That the freight-yard road clearly came within the definition of a "highway" as distinguished from a "private road or driveway" as these terms are defined in the "uniform act regulating the operation of vehicles on highways." Acts 1926, ch. 474, pp. 766, 767.

2. AUTOMOBILES — Guest — Duty of Guest to Warn Driver — Duty to Protest to Driver — Case at Bar. — The instant case was an action by plaintiff against Dame's executor and the town of Christiansburg. Plaintiff was injured in a collision between a truck owned by Dame and a truck owned by the town of Christiansburg. Plaintiff was riding in the Dame truck. There was no evidence sufficient to support a verdict finding that prior to or at the time that the plaintiff first saw the truck of the town of Christiansburg, the driver of the Dame truck had been or was guilty of driving in a reckless or negligent manner or at an excessive speed. The uncontradicted evidence was that the driver of the Dame truck saw the Christiansburg truck as soon as, or before, the plaintiff saw it, and showed his consciousness of its position, proximity and movements; and the evidence failed to show any fact or circumstance which should have put the plaintiff on guard that the driver of the Dame truck would not use all precautions necessary to prevent a collision. Under these circumstances no duty rested upon the plaintiff to warn the driver of the proximity of the Christiansburg truck or to protest against the speed at which he was driving.

Held: That it was error to instruct that such duty rested upon the plaintiff.

3. AUTOMOBILES — Contributory Negligence — Contributory Negligence Not Proximate Cause of Injury — Case at Bar. — The instant case was an action by plaintiff against Dame's executor and the town of Christiansburg. Plaintiff was injured in a collision between a truck owned by Dame and a truck owned by the town of Christiansburg. Plaintiff was riding in the Dame truck. Even if it be assumed that, whether he was standing up in or sitting on the side of the body of the truck, the plaintiff was not in all respects using the proper care for his own safety, there is no evidence which is sufficient to sustain a verdict predicated upon a finding that by so doing he contributed to the event which resulted in his injury in such a way as to bar his recovery against the town of Christiansburg.

4. CONTRIBUTORY NEGLIGENCE — Proximate Cause. — Not every act of negligence which a plaintiff is committing at the time an event occurs that results in injury to him will bar his recovery against the person whose negligence was a proximate cause of the event. To bar his recovery his negligence must have been a failure to use due care with respect to the event which resulted in his injury, and must have borne such a relationship to that event that, if he himself had not been negligent, he would have received no injury from the negligence of the defendant. It is not sufficient to bar his recovery that, if he had not been negligent, the event might not have resulted in his being injured, or might, or even would not have resulted in injuring him as seriously as it did.

5. AUTOMOBILES — Contributory Negligence — Contributory Negligence Not Proximate Cause of Injury — Case at Bar. — The instant case was an action by plaintiff against Dame's executor and the town of Christiansburg. Plaintiff was injured in a collision between a truck owned by Dame and a truck owned by the town of Christiansburg. Plaintiff was riding in the Dame truck. Under all the evidence in this case the plaintiff's position in the truck was merely a condition of the collision and his resulting injury, not a proximate cause of it. It may have been a condition which accounted for his being as severely injured as he was, and for his being more severely injured than were the others in the Dame truck, though this is purely conjectural; but under no aspect of the evidence was it a proximate contributing cause of his being injured.

6. AUTOMOBILES — Streets and Highways — Virginia Statute Prescribing Rules for Operating Vehicles on Highways — Signals for Turns at Road Intersections — Code of 1930, Section 2145(4), Pars. 9 and 10, and Section 2145(19). — The Virginia statute prescribing rules for the operation of vehicles on highways provides that before the driver of a vehicle shall make either a left or a right turn at a road intersection he shall give the prescribed signal for such a turn at least fifty feet before making the turn. Code of 1930, section 2145(4), pars. 9 and 10, and section 2145(19). These provisions of the statute create a general duty on the part of drivers of motor vehicles to give the prescribed signal before making a left or right turn at a road intersection. But a failure to give the signal cannot be actionable negligence as to any particular person unless the facts and circumstances of the case are such that the duty to give the signal has become a particular duty owing to that person as an individual.

7. AUTOMOBILES — Streets and Highways — Virginia Statute Prescribing Rules for Operating Vehicles on Highways — Signals for Turns at Road Intersections — Code of 1930, Section 2145(4), Pars. 9 and 10, and Section 2145(19) — Construction of Statute — When Duty to Individual Arises. — For the general duty imposed by the statute (Code of 1930, section 2145(4), pars. 9 and 10, and section 2145(19)) to become a particular duty owing to a particular person, such person must be in a position which, under a reasonable construction and interpretation of the statute, brings him within the particular class of persons for whose protection from injury these provisions of it were enacted.

8. AUTOMOBILES — Streets and Highways — Virginia Statute Prescribing Rules for Operating Vehicles on Highways — Signals for Turns at Road Intersections — Code of 1930, Section 2145(4), Pars. 9 and 10, and Section 2145(19) — Construction of Statute — When Duty to Individual Arises. — When the general duty imposed by the statute (Code of 1930, section 2145(4), pars. 9 and 10, and section 2145(19)) becomes a particular duty owing to a particular person, the failure to give the prescribed signal may become actionable negligence.

9. NEGLIGENCE — Statutory Duty — Duty to Particular Individual. — Where under a reasonable construction of a statutory provision such as the provisions in Code of 1930, section 2145(4), pars. 9 and 10, and section 2145(19), in regard to statutory signals in making right or left-hand turns at road intersections, when no practicable or reasonable degree of care and diligence for the safety of another would call for the performance of an act required thereby, no duty to do the act arises to him as an individual. In other words, when a person is in a position such that no practicable or reasonable degree of care and diligence for his safety would call for the performance of an act prescribed by the statute, he is not in the particular class of persons for whose protection from injury the provision of the statute requiring the act was enacted.

10. AUTOMOBILES — Streets and Highways — Virginia Statute Prescribing Rules for Operating Vehicles on Highways — Signals for Turns at Road Intersections — Code of 1930, Section 2145(4), Pars. 9 and 10, and Section 2145(19). — When the driver of an automobile is in such a position that a reasonably prudent man in the exercise of ordinary care and vigilance would, under all the circumstances of the case, have reasonable grounds for apprehending that his making a left or right turn at a road intersection might affect the operation of another vehicle on the highway into which he intends to turn (that is, require any care or action on the part of the driver of the other vehicle to avoid a collision other than not to increase his speed to one beyond what is a lawful speed along that part of the highway) those in the other automobile are in the particular class of persons for whose protection the provisions as to signals were enacted. Otherwise they are not, and the driver of the automobile making the turn owes no particular duty to them to give the signal prescribed by the statute.

11. AUTOMOBILES — Streets and Highways — Virginia Statute Prescribing Rules for Operating Vehicles on Highways — Signals for Turns at Road Intersections — Code of 1930, Section 2145(4), Pars. 9 and 10, and Section 2145(19) — Reckless Driving — Case at Bar. — The instant case was an action against the executor of the owner of a car in which plaintiff was riding, when the car collided with another car, injuring plaintiff. There was evidence tending to show that the driver of the car in which plaintiff was riding was guilty of acts or omissions which the "Uniform Act Regulating the Operation of Vehicles on Highways" (paragraph (w), p. 767, section 2, p. 768, and section 3(c), p. 769, Acts 1926, ch. 474, as amended by Acts 1927 (Ex. Sess.), ch. 66, p. 158) declares shall constitute "reckless driving," and for the doing or omission of which the act provides a punishment by fine and/or imprisonment. But "reckless driving," as used in that act, was not used with reference to the law of torts, and whether an act or omission which is a violation of this statute constitutes recklessness (in the sense of wantonness) within the purview of the law of torts depends upon the facts and circumstances of the case, and not upon its classification in this statute under...