Sutton v. Bland

• Decision Date: 12 March 1936
• Citation: 166 Va. 132
• Parties: R. A. SUTTON v. R. TYLER BLAND, ADMINISTRATOR OF GERTRUDE POND, DECEASED and W. R. REED v. R. TYLER BLAND, ADMINISTRATOR OF GERTRUDE POND, DECEASED.
• Court: Virginia Supreme Court

Page 132

166 Va. 132

R. A. SUTTON v. R. TYLER BLAND, ADMINISTRATOR OF GERTRUDE POND, DECEASED and W. R. REED v. R. TYLER BLAND, ADMINISTRATOR OF GERTRUDE POND, DECEASED.

Supreme Court of Virginia, Richmond.

March 12, 1936.

Present, All the Justices.

1. AUTOMOBILES — Liability of Host to Guest — North Carolina Rule. — In North Carolina ordinary negligence will support a recovery in favor of a guest against his host.

2. CONFLICT OF LAWS — Automobiles — Lex Loci Applies — Case at Bar. — The instant case was an action by guests against their host to recover for injuries sustained in an automobile accident which occurred in North Carolina.

Held: That the principle of the lex loci governing the liability of the host must be applied.

3. AUTOMOBILES — Negligence — Car Running Off Pavement. — It cannot be said that the mere fact that a car ran off the pavement on to the shoulder was negligence.

4. AUTOMOBILES — Action by Guest against Host — Insufficiency of Evidence to Show Negligence on Part of Driver — Case at Bar. — In the instant case, actions by guests against their host to recover for injuries sustained in an automobile accident, on the day of the accident it was raining, the roads were slippery and a high wind was blowing. While the driver was proceeding down grade at a speed of about forty-five miles per hour the right wheels of the car ran off the concrete and after running along the shoulder for a short distance the driver attempted to bring the car back on the concrete, whereupon the car skidded, went across the road and down an embankment. One of the plaintiffs testified that the car was driven carefully and not at an excessive speed.

Held: That the evidence failed to show that the driver was guilty of any actionable negligence.

5. AUTOMOBILES — Action by Guest against Host — Contributory Negligence — Case at Bar. — In the instant case, actions by guests against their host to recover for injuries sustained in an automobile accident, the parties left Virginia on a trip to Florida on a day in midwinter, when it was raining, the roads were slippery and a strong wind was blowing. The right wheels of the automobile ran off the concrete and it skidded and went down an embankment. Each of the plaintiffs had in turn driven the car a short time before the accident. Both were familiar with the conditions and neither protested as to the speed of the car or the manner of its operation.

Held: That both plaintiffs acquiesced in the manner in which the car was driven and were clearly guilty of contributory negligence.

Error to a judgment of the Circuit Court of King and Queen county. Judgment for defendant. Plaintiffs assign error.

The opinion states the case.

Denny & Valentine, J. D. Mitchell and R. Westwood Winfree, for the plaintiffs in error.

Sinnott & May, for the defendant in error.

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

R. A. Sutton, and W. R. Reed, while passengers in an automobile owned by Mrs. Gertrude Pond and driven by Mrs. Ada Burton, were injured when the car turned over on a North Carolina highway. Mrs. Pond was killed in the accident. Sutton and Reed instituted separate actions against Mrs. Pond's administrator to recover damages for their injuries. This writ of error challenges the correctness of the lower court's action in striking the evidence in the two cases which were tried together.

The two plaintiffs, Sutton and Reed, were the only surviving eyewitnesses to the accident who testified. It appears that on the early morning of January 1, 1934, Sutton, Reed, Mrs. Burton and Mrs. Pond left West Point, Virginia, in Mrs. Pond's 1933 Chevrolet coach, bound for Deland, Florida, to render assistance to Mrs. Pond's son who was in jail at the latter place. Sutton was the brother of Mrs. Pond and Mrs. Burton. Reed was Mrs. Pond's pastor.

When the parties left West Point it was raining, the roads were slippery and a high wind was blowing. This condition continued throughout the trip.

Sutton drove from West Point to the outskirts of Richmond where he turned the wheel over to Reed. The latter drove through Richmond, thence to Petersburg and on to Dinwiddie. Mrs. Burton drove continuously from Dinwiddie to the point of the accident in North Carolina, about one hundred yards south of the Virginia line.

Shortly after Mrs. Burton began driving Mrs. Pond suggested that, perhaps, they were not making sufficient time. Thereupon Reed remarked that he had noticed that while he was driving the car quivered when it reached fifty-five miles per hour. Accordingly Mrs. Burton did not attempt to make any such speed. Sutton, who was seated in the rear of the car with Mrs. Pond, paid no attention to the manner in which Mrs. Burton drove. Reed, who occupied the front seat beside Mrs. Burton, testified that she drove carefully and not at an excessive speed. While he noticed that at times she drove close to the right-hand edge of the concrete and, on three occasions, actually ran on to the dirt shoulder, yet each time the car returned to the pavement without trouble. Except for the casual remark from Reed to Mrs. Burton that the shoulders were thawing and might be soft, no attention was paid by the occupants to these incidents or to the manner of driving.

Shortly after crossing the North Carolina line, and while proceeding at a speed of about forty-five miles per hour down a four and one-half per cent grade which ended in a curve to the left, the right wheels of the car again ran off the concrete on to the dirt shoulder. After running safely along the shoulder for a short distance Mrs. Burton attempted to bring the car back to the concrete. In doing so the rear wheels skidded to the right, the car went across the road to the left and down an embankment. It afterwards appeared that the concrete was slippery on account of a slight layer of dust which had not been washed away by the rain. All of the occupants were injured, Mrs. Pond so seriously that she died within three hours.

The lower court sustained the defendant...