Morris v. Peyton

• Citation: 148 Va. 812
• Court: Supreme Court of Virginia
• Decision Date: 29 September 1927
• Parties: W. MORRIS, TRADING AS MORRIS JUNK & BARREL COMPANY, v. NEBRASKA PEYTON, BY J. P. PEYTON, HIS NEXT FRIEND.

Page 812

148 Va. 812

W. MORRIS, TRADING AS MORRIS JUNK & BARREL COMPANY, v. NEBRASKA PEYTON, BY J. P. PEYTON, HIS NEXT FRIEND.

Supreme Court of Virginia, Richmond.

September 29, 1927.

Absent, Christian, J.

1. VARIANCE — Time of Making Objection — Objection after Verdict of Jury — Case at Bar. — In the instant case, an action for negligent injury, no objection was made to any of the plaintiff's evidence on the ground of variance until after the jury's verdict, or any motion to exclude any portion of plaintiff's evidence.

Held: That by failing to make timely objection, and by availing himself of full opportunity to meet the plaintiff's proof by evidence on his behalf, defendant waived any variance between the pleading and proof.

2. VARIANCE — Time of Objection — Usual Practice. — In case of variance between the evidence and the allegations the usual and correct practice is to object to the evidence when offered, or if it is already in, to move to exclude it, and in either event to except to an adverse ruling of the court. Attention is thus called to the discrepancy and an opportunity offered the other party to cure the objection.

3. VARIANCE — Effect of Variance — Timely Objection. — It is elementary law that the proof must correspond with the allegations. But to avail himself of this rule a defendant is required to make timely objection.

4. APPEAL AND ERROR — Conflicting Evidence — Verdict Resolves Conflict. — Where the jury found for plaintiff and the verdict was approved by the trial court, all controverted matters arising from conflicts of evidence must be resolved in favor of the plaintiff.

5. AUTOMOBILES — Driver Inviting Boy to Ride on Fender — Case at Bar. — The instant case was an action for negligent injury. Under the evidence the jury were justified in finding that the driver of the automobile invited plaintiff, a boy, to ride upon his truck and knowingly permitted him to stand on the fender or the running board; that while clinging to the seat of the truck plaintiff was jostled off of the moving truck while going around a corner and injured; that the truck was a light motor vehicle upon which the vibration was greater even when moving on a street at slow speed than is the case with better built automobiles with springs and that the boy was a child with a child's lack of appreciation of danger, and the duty rested upon the driver not to expose him to the danger of injury.

Held: That under the circumstances defendant became charged with the duty of exercising reasonable care and caution toward the child; the finding of the jury that he failed to do so and that such failure constituted negligence and was the proximate cause of the injury should not be disturbed on appeal.

6. NEGLIGENCE — Children — Doctrine in Virginia. — In Virginia the settled doctrine as to the capacity of a child to commit an act of negligence is that a child under seven years of age cannot be guilty of negligence, and that as to children between seven and fourteen years of age the presumption is they are incapable of exercising care and prudence and this presumption prevails unless rebutted by sufficient proof to the contrary.

7. AUTOMOBILES — Children — Negligence — Capacity of Child to Commit an Act of Negligence for Jury — Case at Bar. — In the instant case, an action by a child, a boy of thirteen, for negligent injury, the plaintiff was riding on the running board of defendant's automobile when injured.

Held: That the question as to the capacity of the child to commit an act of negligence was properly submitted to the jury.

8. CHILDREN — Negligence — Knowledge Imputed to Defendant — Case at Bar. — If in the instant case, an action for negligent injury by a boy thirteen years of age, it was prima facie as a matter of law to be implied that the child did not possess a sufficient degree of realization of the peril to which it was exposed in riding in a position of known danger, then knowledge of that fact might well be imputed to the defendant by the jury.

9. AUTOMOBILES — Dangerous Instrumentalities — Riding on Running Board. — While it is held that an automobile is not of itself such a dangerous agency as to make applicable to it the rules requiring extraordinary care in the use of instrumentalities dangerous per se, yet it is a matter of common knowledge and experience that it is hazardous to ride on the fender or running board of a moving motor vehicle.

10. CHILDREN — Turntable Cases — Rule in Virginia. — What is known as the doctrine of the Turntable Cases has been repudiated in Virginia.

11. AUTOMOBILES — Negligence — Trespassers — Case at Bar. — In the instant case, an action for negligent injury, plaintiff, a child, was injured from a fall while riding on the running board of defendant's automobile, being thrown off as the automobile rounded a corner. Plaintiff and his companion testified that they were invited by the driver of the automobile to ride in return for a slight service rendered by them to the driver.

Held: That plaintiff was in no manner a trespasser, nor necessarily a mere licensee.

12. NEGLIGENCE — Children — Defendant Charged with Notice of Child's Danger. — When the relation existing between plaintiff, a child, and the defendant was, at the time of the injury, such as to charge defendant with a knowledge of the child's situation and with a duty of not exposing it to a peril which the child was not as likely to realize as could an adult, then a breach of such duty may constitute negligence.

13. AUTOMOBILES — Duty Owed to Guests. — The express or implied duty of the owner or driver to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injuries the occupant by increasing the hazard of that method of travel. He must exercise the care and diligence which a man of reasonable prudence, engaged in like business, would exercise for his own protection and the protection of his family and property — a care which must be reasonably commensurate with the nature and hazards attending this particular mode of travel.

14. AUTOMOBILES — Child Permitted to Ride on Running Board — Questions for Jury — Case at Bar. — In the instant case, an action for negligent injury, plaintiff was injured while riding on the running board, at the invitation of the driver, of defendant's automobile. Plaintiff was under fourteen years of age.

Held: That the trial court did not err in submitting the issues in the case to the jury; and that the jury, having seen and heard the witnesses with opportunity to observe the bearing and degree of intelligence of the plaintiff boy, and their verdict having been approved by the trial court, the appellate court should not disturb the judgment.

15. QUESTIONS OF LAW AND FACT — Negligence. — Courts constantly have to refer to juries the question of what is reasonable conduct, or reasonable prudence, under all the circumstances of the case, with no other guide than their own judgment and conclusion as reasonable men.

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

The opinion states the case.

Rixey & Rixey, for the plaintiff in error.

R. H. Pree, for the defendant in error.

CRUMP, P., delivered the opinion of the court.

Peyton, plaintiff in the trial court, Circuit Court of the city of Newport News, recovered of Morris, the defendant in the case, $500.00 as damages for negligent injury. Morris assigns error.

The only assignment of error is to the ruling of the trial court refusing to set aside the verdict of the jury, and is stated in the petition for writ of error as follows:

"That the trial court erred in refusing to set aside the verdict and enter judgment for the defendant, on the ground that the verdict was contrary to the law and the evidence and without evidence to support it, and on the grounds that there was no evidence of negligence on the part of the defendant and no causal connection between any act or omission of the defendant and the injury, and that the allegata and probata did not correspond in that the notice of motion the plaintiff laid as his sole ground of negligence the alleged negligent method of operation of the truck while under the evidence his only claim of negligence was in the evidence that the defendant's driver allowed the plaintiff to ride on the running board while moving at five miles an hour."

Two subjects of complaint are thus presented to this court for consideration: (1) That there was a variance between the allegations of the notice of motion for judgment and the proof offered on the trial; (2) that the verdict was contrary to the law and evidence and without evidence to support it.

The defendant filed no demurrer to the notice of motion, and made no demand for a bill of particulars of plaintiff's claim.

1, 2 No objection was made to any of the plaintiff's evidence on the ground of variance until after the jury's verdict. A careful examination of the record fails to disclose any such objection, or any motion to exclude any portion of plaintiff's evidence. If any such question had been raised during the course of the trial, the court would doubtless have allowed the plaintiff, if essential, to amend the notice of motion, pursuant to the settled practice under section 6250 of the Code. In case of variance between the evidence and the allegations the usual and correct practice is to object to the evidence when offered, or if it is already in, to move to exclude it, and in either event to except to an adverse ruling of the court. Attention is thus called to the discrepancy and an opportunity offered the other party to cure the objection.

3 It is elementary law that the proof must correspond with the allegations. But to avail himself of this rule a defendant is required to make timely objection.

If there was in any particular a variance between the...