Richter v. Seawell

• Decision Date: 20 November 1944
• Citation: 183 Va. 379,32 S.E.2d 62
• Parties: RICHTER. v. SEAWELL.
• Court: Virginia Supreme Court

32 S.E.2d 62

183 Va. 379

RICHTER.

v.SEAWELL.

Supreme Court of Appeals of Virginia.

Nov. 20, 1944.

Error to Circuit Court of City of Norfolk; Allan R. Hanckel, Judge.

Action by notice of motion by Cora L. Seawell, administratrix of the estate of Alvin C. Seawell, deceased, against Fred W. Richter, administrator of the estate of William Clyde Knighton, deceased, for the wrongful death of plaintiff's intestate as the result of an automobile accident. Judgment for plaintiff, and defendant brings error.

Reversed, and final judgment for defendant entered.

Before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Preston P. Taylor, of Norfolk, for plaintiff in error.

Reuben E. Spandorfer, of Norfolk, for defendant in error.

EGGLESTON, Justice.

On the night of August 23, 1941, two young men, William Clyde Knighton and Alvin C. Seawell, left Norfolk, in Knighton's car, bound for Baltimore, Maryland. Between three-thirty and four o'clock the next morning the car was found wrecked, against a tree, about a mile west of Ivor, on the left-hand side of Highway 460 leading from Suffolk to Petersburg. The only occupants of the car, Knighton and Seawell, were dead.

Seawell's administratrix sued Knighton's administrator for damages for the alleged wrongful death of Seawell. The notice of motion for judgment alleged that at the time of the accident Knighton was driving the car, and since no affidavit denying such operation was filed, under Code, § 6126, proof of this allegation was not required. The ease was tried on the theory that Sea-well was a gratuitous guest in the car and that his death was proximately due to Knighton's gross negligence. There was a verdict for the plaintiff below upon which the trial court entered judgment, but only after expressing considerable doubt as to the sufficiency of the evidence to sustain it.

The sole question presented to us is whether there was sufficient evidence to warrant the jury in finding that Knighton was guilty of gross negligence which was the proximate cause of his companion's death.

The tragedy was reported to the headquarters of the State police at Smithfield, some twenty-two miles away, at about three-thirty a.m. Within an hour an officer was on the scene. At the point where the car was found the road is straight for a considerable distance in either direction, is practically level, is paved to a width of forty-two feet, is flanked by dirt shoulders, and is designed for four-lane travel.

The officer found marks on the road which indicated to him that the car had gone off the pavement on the right-hand side and had traveled along the dirt shoulder for a distance of one hundred and eighteen yards, that it had then swerved to the left onto the pavement and after skidding sideways to the left, had proceeded diagonally along the pavement for a distance of approximately seventy-four yards, had gone thence off the pavement on the left and down a seven-foot embankment, and had struck a tree some twenty-seven feet to the left of the road. The car was demolished, the motor and radiator having been thrown clear of the body.

When the officer arrived at the scene a drizzling rain was falling, but there is no evidence as to how long this condition had existed, or what was the state of the weather at the time of the accident....