Thomas v. Snow

• Decision Date: 14 June 1934
• Parties: JESSE A. THOMAS v. WILLIAM S. SNOW.
• Court: Virginia Supreme Court

Page 654

162 Va. 654

JESSE A. THOMAS v. WILLIAM S. SNOW.

Supreme Court of Virginia, Wytheville.

June 14, 1934.

Present, Campbell, C.J., and Epes, Hudgins, Gregory and Browning, JJ.

1. AUTOMOBILES — Care Owed Guest by Host — Gross Negligence. — Virginia has definitely adopted the minority, or Massachusetts, rule, which is that a host in an automobile owes to his guest the duty to observe "slight" care; that is, he is liable only in the event the plaintiff guest establishes "gross negligence."

2. AUTOMOBILES — Care Owed Guest by Host — Gross Negligence — Questions of Law and Fact. — In adopting the Massachusetts rule as to the care owed a guest by his host in automobile cases, the Supreme Court of Appeals has reopened in this class of cases the troublesome question of the distinction to be made in the degrees of care and diligence, denying recovery when the host is guilty only of "ordinary negligence" and permitting recovery when it is established that he is guilty of "gross negligence." It is often difficult to mark the line where the one ends and the other begins. And it must be often left to the jury, upon the nature of the subject matter, and the particular circumstances of each case, with suitable remarks by the judge, to say whether the particular case is within the one or the other.

3. NEGLIGENCE — Willfulness and Wantonness — Gross Negligence. — Negligence conveys the idea of heedlessness, inattention, inadvertence; willfulness and wantonness convey the idea of purpose or design, actual or constructive. In some jurisdictions they are used to signify a higher degree of neglect than gross negligence.

4. NEGLIGENCE — Willfulness and Wantonness. — In order that one may be held guilty of willful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.

5. CONTRIBUTORY NEGLIGENCE — Gross Negligence — Willfulness and Wantonness. — It is important to mark the distinction between acts or omissions which constitute gross negligence and those which are termed willful or wanton, because it is usually held that in the former contributory negligence on the part of plaintiff will defeat recovery, while in the latter it will not. When defendant's wrong is something more than mere negligence, that is, when it has the element of willful, reckless and wanton misconduct, contributory negligence is not a defense.

6. AUTOMOBILES — Distinction between Willful or Wanton Negligence and Gross Negligence. — The distinction between acts or omissions which constitute gross negligence and those which are termed wanton or willful negligence is not always observed in the different jurisdictions, but inasmuch as this State deliberately adopted the Massachusetts rule in this class of cases, in the absence of statute it seems logical to apply the distinction which is applied in that State.

7. AUTOMOBILES — Duty of Host to Guest — Gross Negligence — Willfulness and Wantonness. — Gross Negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require a person of ordinary prudence. But it is something less than the willful, wanton, and reckless conduct which renders a defendant who has injured another liable to the latter, even though guilty of contributory negligence.

8. AUTOMOBILES — Action by Guest against Host — Instructions — Knowingly or Wantonly — Case at Bar. — In an action by a guest against his host for injuries incurred in an automobile accident, the court instructed the jury that if they believed defendant was not keeping a proper lookout ahead and that his failure to do so was the direct and proximate cause of the injury sustained by the plaintiff, and if they further believed that such conduct on the part of the defendant knowingly or wantonly added to the perils or risks not ordinarily expected under the circumstances, they must find for the plaintiff.

Held: That defendant could not object to this instruction, as it, in effect, told the jury that defendant was not liable unless they believed he actually or constructively intended to inflict the injury which occurred, which is not a correct statement of the degree of care he owed to the plaintiff.

9. AUTOMOBILES — Action by Guest against Host — Instructions — Sudden Emergency — Case at Bar. — In an action by a guest against his host for injuries incurred in an automobile accident, the court instructed the jury that if they believed defendant was driving his car on the left-hand side of the road and thereby knowingly added to the perils or risks not ordinarily expected, they must find for plaintiff. The jury might have believed that defendant knowingly turned or swerved his car to the left in order to avoid a collision with a car on his right, and still have found for plaintiff under this instruction.

Held: That the instruction was erroneous.

10. INSTRUCTIONS — Directing a Verdict — Instruction Must State a Complete Case. — An instruction directing a verdict must state a complete case and embrace all elements necessary to support a verdict.

11. INSTRUCTIONS — Defining Duty Defendant Owed to Plaintiff — Duty Must Be Set Forth with Reasonable Clearness — Case at Bar. — When an instruction attempts to define the duty which defendant owes to plaintiff, the duty should be set forth with reasonable clearness, and if it is so framed as to be calculated to confuse or mislead the jury, as in this case, it is prejudicial error.

12. AUTOMOBILES — Action by Guest against Host — Instructions — Right of Parties to Have Their Theories Properly Submitted to the Jury. — In an action by a guest against his host for injuries incurred in an automobile accident, both parties were entitled to have their respective theories submitted to the jury by proper instructions, not necessarily embraced in the same instruction.

13. INSTRUCTIONS — Language Appropriate in an Opinion Not Always Appropriate in an Instruction. — Language appropriate in an opinion is not always appropriate to be used in instructing a jury.

14. AUTOMOBILES — Liability of Host to Guest — Sudden Emergency — Instructions. — In an action by a guest against his host for injuries incurred in an automobile accident, the defendant alleged that he was suddenly placed in a position of peril by the negligence of a driver of a third automobile and was compelled to turn onto the left side of the road in order to avoid a collision. Whether defendant was grossly negligent in not returning to his side of the road in time to avoid the collision with another car, which resulted in plaintiff's injuries, was for the jury.

15. AUTOMOBILES — Duty of Host to Guest — Instruction Assuming Degree of Care Owed by Host to Guest Was Ordinary Care — Case at Bar. — In the instant case, an action by a guest against his host for injuries incurred in an automobile accident, an instruction which assumed that the degree of care which the defendant owed plaintiff was ordinary care, is erroneous.

16. AUTOMOBILES — Driver of Car Turning to Left-Hand Side of Road — Gross Negligence. — Drivers of cars in traffic are by necessity frequently compelled to turn quickly one way or the other to avoid a collision. A failure to do so under some circumstances may be gross negligence.

Error to a judgment of the Corporation Court of the city of Alexandria. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Barbour, Keith, McCandlish & Garnett and R. Walton Moore, for the plaintiff in error.

Charles Henry Smith, for the defendant in error.

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

This cause of action originated in a collision between an automobile driven by Jesse A. Thomas, defendant below, and another automobile driven by James C. Lewis, on the highway leading from Washington to Alexandria. Plaintiff below, who was riding as an invited guest in defendant's automobile, recovered a verdict and judgment in this action against his host.

Plaintiff and defendant, about ten o'clock on the night of June 29, 1932, were returning to Alexandria from a fishing trip in Maryland. After crossing the Potomac river they were proceeding south towards Alexandria by the lower, or left-hand, road. This highway is intersected at an acute angle by the Military, or Fort Myer, road. At the intersection of these two highways, on the tongue of land between the two is located an automobile gas service station, some 100 feet south of the intersection. At this point the lower road is forty-two feet wide, hard-surfaced, with a white concrete slab five inches wide to mark the center. Lewis' car was proceeding north toward Washington. At a point approximately 140 feet south of the entrance to the gas station, and while Lewis was driving on his right, the east side of the highway, and within six or eight feet of the eastern edge, there was a head-on collision between his car and the one driven by Thomas. As the cars met they seem to have been the same distance from the eastern curb, as Lewis testified that the "bumpers met identically." The road was straight, the night was clear and dry, both headlights were burning.

The theory of plaintiff is that Thomas, without cause, was driving south, on his left, in the north lane of traffic, and without keeping a lookout for on-coming cars, on a much-traveled highway, where he knew, or ought to have known, he was in imminent danger of a collision with cars proceeding...