Smith v. Prater

• Decision Date: 17 January 1966
• Court: Virginia Supreme Court
• Parties: Charles Wilford SMITH v. William Curtis PRATER.

Page 179

146 S.E.2d 179

206 Va. 693

Charles Wilford SMITH v. William Curtis PRATER.

Supreme Court of Appeals of Virginia.

Jan. 17, 1966.

Francis W. Flannagan, Bristol (Curtin, Haynes & Winston, Bristol, Tenn., on brief), for plaintiff in error.

Stuart B. Campbell, Jr., Wytheville, Robert I. Asbury, Marion (Campbell & Campbell, Wytheville, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

SPRATLEY, Justice.

This is an action for damages brought by William Curtis Prater against Charles Wilford Smith for personal injuries sustained by the plaintiff, who was a guest passenger in an automobile driven by Smith. There was a jury verdict for $17,500.00 in favor of Prater, on which the court entered judgment and Smith appealed. Smith contends: (1) that he was not guilty of gross negligence; (2) that his gross negligence, if any, was not a proximate cause of the accident; (3) that plaintiff was guilty of contributory negligence; and, (4) that plaintiff assumed the risk involved.

There are no assignments of error concerning the admissibility of evidence, or the granting, or refusal of instructions. The evidence viewed in the light most favorable to Prater, the prevailing party, may be summarized as follows:

The accident occurred about 1:00 a. m. on May 28, 1961, a short distance west of Shuler Bridge on East Main street, in the town of Marion, Virginia. East Main street is hard surfaced, 49 feet wide, with a speed limit, at that time, of 25 miles per hour. The surface of the road was dry and the weather clear.

At the time of the accident, Prater was 22 years of age, unmarried, and unemployed. Smith was also 22 years old, and employed as an operator of heavy equipment, 'DW 21 Earth Mover,' in Washington, D. C. He formerly lived in Marion; but, at the time of the trial, was a member of the U. S. Armed Forces. He was married, but lived apart from his wife, who spent some of her time in Marion with her parents.

On May 27, Prater and a young lady friend, Mary Louthian, after attending a drive-in movie in the evening, drove to a restaurant named Lee-High. They arrived at the restaurant between 11:30 p. m. and 12:00 M., and there parked their car.

Smith drove from Washington to Marion, on a visit, on the morning of May 27. Because of some mechanical difficulties with his own automobile, he borrowed his father's car, which he described as a 1952-six cylinder Ford, straight gear shift, 'about shot. It had a lot of miles on it.' He drove in this Ford to a restaurant where he drank some beer, purchased two six-packs of beer, took them to his car, drove to the home of his father-in-law, and there met his wife, Rita Armstrong Smith. Mrs. Smith got in the car with her husband, and they drove to the Lee-High, where they met Prater and Miss Louthian, all friends for some years.

After some conversation between the occupants of the two automobiles, Miss Louthian and Mrs. Smith decided to go, in the Smith car, and get Miss Louthian's younger sister, Jean. This they did, with Mrs. Smith driving. Smith and Prater got in Prater's automobile, to which Smith had brought three cans of beer. Prater produced a bottle of whiskey, which had a small drink in it. Smith and Prater then drove, in Prater's car, with Prater at the wheel, from Marion towards Sugar Grove. On this trip, the whiskey was consumed, as well as some of the beer, by Smith and Prater. After a short time, Smith and Prater returned to the Lee-High and rejoined Mrs. Smith, Miss Louthian and the latter's sister. Prater, Smith and the three women then got in the Smith car, and Mrs. Smith drove 16 miles to Atkins, the home of Jean Louthian. During the trip, the two men shared a can of beer.

When they left Atkins to return to Marion, Smith drove his car, the Ford. He and his wife occupied the front seat, and Prater and Miss Louthian the back seat. Upon reaching the home of Miss Louthian in Marion, Miss Louthian got out, and Prater then got in the front seat on the right-land side, next to Mrs. Smith. They then traveled east on Cherry street, and came to Route 16, and thence to East Main street, where they made a stop, pursuant to a stop sign near an Esso Service Station. During all of this time, Smith was driving in a normal and careful manner. After they reached East Main street, Prater gave this version of what happened:

'And he stopped at the stop sign, put it in low gear and said something to his wife--and he put it in low gear and he took off and 'spinned' the wheels, put it up in second gear and 'spinned' another wheel, and he got along there about where the Texaco station is, I asked him to slow down and he looked over at me and laughed and kept going that much faster.

'When he went into the curve down there he went--the car got to scooting with him. I asked him to slow down again and he just kept going that much faster.

'Q. Let me interrupt you there. Did he make any response, you say the second time you asked him to slow down?

'A. No, sir, he didn't.

'Q. Didn't say anything or do anything?

'A. Just looked at me and laughed and kept going.

'Q. Sir.

'A. (Continuing) Then he went into the next curve. He crossed, started across the road and it seemed to me like the door flew open. I don't know whether it was before we hit or what. And I got up out of the road, I remember getting out of the road, and some guy come along and picked me up.'

Prater, when asked how he 'went out' the right front door, replied: 'I can't say for sure but, it seems to me like the door flew open and his wife come over against me. I don't know. I can't say for sure. Asked how the car was traveling when he was thrown out, he said: 'Cross, pointed cross the road and scooting.' He said that 'scooting' meant 'sliding and crossing the road all at the same time.'

East of the Esso Station, there are two curves on East Main street, beginning .4 of a mile from the intersection with Sixteenth street. Looking to the east, the first curve turns to the driver's right and the next curve to the driver's left. Prater estimated that when the Ford entered the first curve and started 'scooting,' it was running 55 to 65 miles per hour or more.

Prater was seriously and permanently injured. Two of his fingers were required to be amputated, and he suffered grievous wounds to his fingers and portions of his head. He had splintered glass in his hair and face.

Asked to describe what occurred after they left Route 16, Mrs. Smith said:

'Well, he changed gears up to second and left it up there up to about thirty or thirty-five then changed gears and kept going faster. And Curt asked him to slow down and he just laughed at him and stepped down on the gas more. Gurt asked him again to slow down but he didn't. He just kept going faster. We got to that curve up there at the Pepsi-Cola Plant and he started--the car started weaving. As we went around the curve the car started scooting and he lost control of it just before we got to the end of it. And we weaved back and forth and I don't remember--I pust my hands over my eyes, I don't remember what then. The next thing I remember, I was out on the road.'

The car came to rest on its left-hand side of the road against a telephone pole. East Main street narrows slightly at Shuler Bridge, and there is an open space on the left side of the bridge for parking. The wrecked car was in this space immediately after the accident.

Smith, the defendant, denied that he was guilty of any negligence. He admitted that he had a small drink of whiskey and drank several bottles of beer. He denied that he had spun the wheels, or that the car had the power to do so. He said that when he got in the first curve on East Main street, Prater asked him to 'slow down. I want to take a drink;' that Prater had 'a chaser and a whiskey in his hand;' that 'When I made the curve back to my left they went out. I couldn't say what made them go out;' that his speed at that time was 'Forty, forty-five;' that the 'right-hand front door flew open. It opened, I don't know whether it flew open or what, but there wasn't nothing wrong with my car door;' and 'I let go of the steering wheel to catch my wife. I lost control of my car then;' and after he 'let go of the steering wheel,' the car 'shot across on the left-hand side lane, hit a telephone pole;' and he got out, walked back to where his wife was, '20-30 feet behind the car.' The 'front center' of the car hit the pole, but no glass in the car was broken. It was towed or pushed away from the scene of the accident.

After the accident, Smith was taken by a friend to the home of his father-in-law, and there went to bed. He had a head wound, but did not seek medical attention. Later that night he was arrested and taken to jail. In the morning, it was discovered that his neck had been broken, he had three fractured vertebrae, and was taken to a hospital.

The burden was, as Smith contends, on Prater to prove by a preponderance of the evidence that the defendant operated his automobile in such a manner as to show an 'utter disregard of prudence amounting to complete neglect of the safety' of his guest, and that such negligent operation proximately caused the accident complained of and the resulting injuries. Dishman, Adm'r v. Pitts, Adm'r, 202 Va. 548, 551, 118 S.E.2d 509.

'Proof of gross negligence depends upon the facts and circumstances of each particular case.' Alspaugh v. Diggs, 195 Va. 1, 5, 77 S.E.2d 362, 364; Price v. Burton, 155 Va. 229, 154 S.E. 499.

In Carroll v. Miller, 175 Va. 388, 399, 9 S.E.2d 322, 326, we said:

'In many instances we have to deal with borderline cases, and it is our duty to support verdicts when they, in turn, are supported by credible evidence, but not otherwise.'

In Smith, Ex'r v. Smith, 199 Va. 55, 97 S.E.2d 907, many of the recent decisions involving the question of gross negligence are cited and discussed. There we said:

'Since the...