Smith v. Wiley-Hall Motors

• Decision Date: 06 June 1945
• Docket Number: Record No. 2916.
• Citation: 184 Va. 49
• Parties: V. C. SMITH v. WILEY-HALL MOTORS, INC.
• Court: Virginia Supreme Court

Page 49

184 Va. 49

V. C. SMITH v. WILEY-HALL MOTORS, INC.

Record No. 2916.

Supreme Court of Virginia, Wythebille.

June 6, 1945.

Present, All the Justices.

1. NEGLIGENCE — Contributory Negligence — Plaintiff's Walking into Place Where He Had No Right to Be — Case at Bar. — The instant case was an action for damages received when plaintiff fell into a grease pit at a filling station. While plaintiff's automobile was being filled with gasoline by the filling station attendant plaintiff went into the reception room in quest of a toilet. He made no inquiries as to where the facility was located and said nothing to the attendant whom he passed close by. He saw a door which opened into a dark room and felt along the wall in an effort to find the light switch, made a step forward, and fell into the grease pit and was injured. There was no lettering or sign upon the door which he opened. Plaintiff contended that he was an invitee and that the defendant maintained a dangerous situation — a trap — in the premises of which there was no warning; that the door to the place was one likely to be that leading to the toilet and that it was the duty of the proprietor to warn the public, and particularly an invitee, of the hidden and concealed danger.

Held: That there was no merit in the contention of the plaintiff since he was obviously guilty of negligence which was the sole cause of the accident.

2. INSTRUCTIONS — Appeal and Error — Necessity for Exception — Binding Effect of Statement of Counsel — Case at Bar. — In the instant case, an action for damages for injury received by plaintiff in a fall on defendant's premises, plaintiff assigned as error the court's refusal to grant an instruction as offered and the granting of the instruction as amended. He made no exception to the instruction and his counsel stated, "I think that unquestionably instruction number 5 is right with the amendment that your honor has placed on it."

Held: That the plaintiff waived his right to object to the instruction by not submitting a timely and proper exception to it and he was bound by the statement of his counsel.

3. NEGLIGENCE — Persons on Premises by Implied Invitation — Case at Bar. — The instant case was an action for damages received when plaintiff fell into a grease pit at a filling station. While plaintiff's automobile was being filled with gasoline by the filling station attendant plaintiff went into the reception room in quest of a toilet. He made no inquiries as to where the facility was located and said nothing to the attendant whom he passed close by. He saw a door which opened into a dark room and felt along the wall in an effort to find the light switch, made a step forward, and fell into the grease pit and was injured. There was no lettering or sign upon the door which he opened. Plaintiff contended that he was an invitee and that the defendant maintained a dangerous situation — a trap — in the premises of which there was no warning; that the door to the place was one likely to be that leading to the toilet and that it was the duty of the proprietor to warn the public, and particularly an invitee, of the hidden and concealed danger.

Held: That the duty owed to the plaintiff as an invitee was coextensive with the invitation issuing, that is, the bid to the reception room for the use of such conveniences as it might afford, did not include a reconnoiter which would take one to the grease pit, and this was so, even if he wanted his car greased.

Error to a judgment of the Circuit Court of Roanoke county. Hon. T. L. Keister, judge presiding.

The opinion states the case.

T. W. Messick and Earl A. Fitzpatrick, for the plaintiff in error.

James I. Moyer and Kime & Hoback, for the defendant in error.

BROWNING, J., delivered the opinion of the court.

Mr. V. C. Smith, the plaintiff in error, a member of the General Assembly of Virginia, was traveling by automobile on the night of October 12, 1942, from Richmond to his home in Grundy, Virginia. En route he arrived at Salem, Virginia, at 12:30 A.M. With him were his son, Harold Smith, and his nephew, Jack Mundy, who was driving. They drove to the front of the filling station of the defendant in error for the purpose of purchasing gasoline. The outside lights were on, apprizing the public that the place was a filling station and garage. There was only one person in attendance and he was told to fill the tank and he went to the rear of the automobile where it was located to perform this service. The plaintiff alighted from the rear seat of the car just a short distance from where the attendant was and went into the reception room in quest of a toilet. He made no inquiry as to where this facility was located, in fact, he said nothing to the attendant, whom he had passed close by. He saw a door to his right which he opened and by which he passed through. It was dark in the room which he had entered. He felt along a wall in an effort to find a light switch. He saw a dim light which...