Smith v. Turner

• Decision Date: 10 September 1941
• Citation: Smith v. Turner, 178 Va. 172, 16 S.E.2d 370 (1941)
• Court: Virginia Supreme Court
• Parties: SMITH. v. TURNER et al.

16 S.E.2d 370

SMITH.

v.TURNER et al.

Supreme Court of Appeals of Virginia.

Sept 10, 1941.

Appeal from Circuit Court, Loudoun County; J. R. H. Alexander, Judge.

Action by Howard W. Smith, Jr., administrator of the estate of Mrs. Emily Ayres Starr, deceased, against Mildred A. Turner and others, for the death of the intestate resulting from an automobile collision. From a judgment for the defendants, plaintiff appeals.

Reversed and remanded.

Argued before CAMPBELL, C. J, and HOLT, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Albert V. Bryan, of Alexandria, for plaintiff in error.

Hall & Hall and Lucas D. Phillips, all of Leesburg, for Mildred A. Turner, defendant in error.

E. E. Garrett, of Leesburg, and T. Russell Cather, of Winchester, for Neville Irwin Smith, defendant in error.

EGGLESTON, Justice.

Mrs. Emily Ayres Starr, while riding as a gratuitous guest in a car operated by Mrs. Neville Irwin Smith, was killed in a collision between that car and another driven by a servant of Mrs. Mildred A. Turner. Howard W. Smith, Jr., administrator of the estate of Mrs. Starr, filed a notice of motion for judgment against Mrs. Turner and Mrs. Smith, jointly, seeking to recover damages for the alleged wrongful death of Mrs. Starr. The notice of motion contained two counts, each of which alleged gross negligence on the part of the two defendants and a joint and several liability on them. The counts differed only in one factual allegation, one count charging that the defendant, Mrs. Smith, was driving her car on the wrong side of the road, and the other that the Turner car was being driven on the wrong side of the road, at the time of the collision. The case was presented to the jury on the theory that since Mrs. Starr was a gratuitous guest of Mrs. Smith, the latter was liable only if she was guilty of gross negligence which was the proximate cause of the collision, whereas the defendant, Mrs. Turner, was liable if her agent was guilty of ordi-nary or simple negligence which proximately caused the collision. No claim was made that the plaintiff's intestate, Mrs. Starr, was guilty of any negligence.

The jury rendered a verdict in these words: "We the jury find Mrs. Neville Irwin Smith not guilty of gross negligence. We the jury find Mrs. Mildred A. Turner not guilty of negligence. Therefore neither of the defendants are liable for damages."

This verdict was amended by the court in the presence of the jury and with its consent to read: "We, the jury, on the issues joined, find for the defendants."

Judgment having been entered on the verdict, the administrator sought and obtained this writ of error. For convenience the parties will be referred to as they appeared in the lower court.

The record discloses these undisputed facts: About noon, on June 10, 1939, the defendant, Mrs. Neville Irwin Smith, with Mrs. Starr as a guest, was driving her automobile in a westerly direction along the public highway leading from Middleburg to Upperville, in Loudoun county. The Turner car was proceeding in the opposite direction. As the two cars approached each other, each driver had an unobstructed view of the other car for a distance of several hundred yards, the road being straight, fairly level, and devoid of other traffic. There was no defect in the roadway which was covered with a newly laid strip of smooth asphalt about 18 feet wide. Both cars were in good condition. Despite this situation, there was a terrific collision between the two cars, the right front of one striking the right front of the other, indicating that one or both of the cars had been driven on the wrong side of the road. When the vehicles came to a rest the Turner car was on the north side of the road, heading in a northeasterly direction, with its left front wheel in the ditch and the other wheels on the north side of the pavement. The Smith car was at right angles across the road and was headed to the north. Its front wheels were on the northern half of the paved surface and its rear wheels were on the southern half.

The marks on the soft asphalt pavement showed that the Turner car had been driven diagonally from the southern side across the center of the road to the northern side. In other words, it had been driven to its left and across the path of the oncoming Smith car. There were other marks on the road which indicated that the Smith car had been driven with its left wheels to the left of the center of the road and had swerved sharply to the north or to the right just before the collision.

As a result of the collision Mrs. Starr received injuries from which she shortly died.

The drivers of the two cars were called by the plaintiff as adverse witnesses. Mrs. Smith testified that she was proceeding at a speed of from 20 to 25 miles an hour when she saw the Turner car emerging from a curve to the west. It was then about 800 feet away. She saw that the oncoming car was being driven in "a very peculiar manner." She described it as being driven "all over the road, first on one side and then on the other, " and "going very fast." Continuing, she said: "I came on, and it didn't leave me much choice what to do. I put my brakes on. I thought he was going to pull out of the way, then he didn't. He came back and hit me on the (right) side of my car." While she insisted that "at the time of or just before the collision, " "I was absolutely on my side, because I have always driven that way, " she admitted that the left wheels of her car "may have been on the center" of the road.

The Turner car was being driven by Bernard Coles, a negro employee. His story is that when he first observed the Smith car it was approaching about 50 yards away and was being driven well over on the southern, that is, his (Coles') right-hand side of the road; that he blew his horn and went as far to the right as he could without going into the ditch; and that when the Smith car kept coming straight at him on his side of the road, he turned his car sharply to the left and directed its course diagonally across the road in the effort to pass the Smith car on its right and thus avoid a collision. He insists that as the two cars approached each other Mrs. Smith was driving at from 40 to 50 miles an hour, that he was proceeding at 30 miles an hour, and that until he made the emergency turn to the left immediately before the collision, he was always on his proper side of the road. There is direct testimony from eyewitnesses corroborating Coles' statement that as the cars approached each other the Smith car was being driven "on the wrong side of the road" or "about the middle of theroadway, " and that the Turner car was on its proper side of the road.

The tire marks on the road as described by some of the witnesses further corroborated the driver of the Turner car. On the other hand, there is testimony that the marks made by the wheels of the Turner car showed that it had swerved back and forth across the center line of the road, as described by Mrs. Smith.

The point of collision is in dispute. Some eyewitnesses place it on the north (Mrs. Smith's) side of the road, while others on the south (Mrs. Turner's) side, and others in the center. The...