Thomas v. Snow

• Court: Virginia Supreme Court
• Writing for the Court: HUDGINS
• Citation: Thomas v. Snow, 162 Va. 654, 174 S.E. 837 (1934)
• Decision Date: 14 June 1934
• Parties: THOMAS . v. SNOW.

174 S.E. 837

THOMAS .

v.SNOW.

Supreme Court of Appeals of Virginia.

June 14, 1934.

Appeal from Corporation Court of Alexandria.

Action by William S. Snow against Jesse A. Thomas. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for a new trial.

Argued before CAMPBELL, C. J., and EPES, HUDGINS, GREGORY, and BROWNING, JJ.

Barbour, Keith, McCandlish & Garnett and R. Walton Moore, all of Fairfax, for appellant.

Charles Henry Smith, of Alexandria, for appellee.

HUDGINS Justice.

This cause of action orginated in a collision between an automobile driven by Jesse

[174 S.E. 83]

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 10 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 loft-hand, road. This highway is intersected at an acute angle by the Military, or Port 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 42 feet wide, hard-surfaced, with a white concrete slab 5 inches wide to mark the center. ¹ 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 6 or 8 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 north.

Defendant contends that after he passed the intersection of the Fort Myer road, and when about opposite the gasoline station, he observed a car traveling towards Washington suddenly swerve to the east and approach defendant's car from his right. In order to avoid a collision with this car, he turned, or swerved, his car from the right to the left-hand side, and before he could get back to the right-hand side of the road the collision took place. In other words, defendant's theory is that without fault on his part he was suddenly placed by the negligence of the driver of the car on his right in such a position that he was compelled to choose instantly, in the face of imminent peril, between two or more means of attempting to avoid danger, and therefore he is not responsible for any injury resulting from the fact that he was on the left-hand side of the road.

It seems that plaintiff was under the erroneous impression that he was entitled to recover by proving that defendant was guilty of simple negligence, merely, since instructions 3 and 4, which he asked the court to give, stated that the jury should find for the plaintiff, in the event they believed defendant was guilty of simple negligence which resulted in his injuries. These instructions were modified and given as follows:

"(3) The court instructs the jury that if you believe from the evidence that the defendant Thomas was not keeping a proper lookout ahead immediately before the accident in question and that his failure to do so was the direct and proximate cause of the injury sustained by the plaintiff, and if you further believe that such conduct on the part of the defendant knowingly or wantonly added to the perils or risks not ordinarily expected under the circumstances, you must find for the plaintiff.

"(4) The court instructs the jury that if you believe from the evidence that the defendant, Thomas, drove his car upon the left hand side of his roadway at the time of the collision in question and that his driving in such manner was the proximate cause of the accident in question, and that such conduct on the part of defendant Thomas, knowingly or wantonly added to the perils or risks not ordinarily expected uuder the circumstances, you must find for the plaintiff."

The giving of these instructions constitutes the first assignment of error.

[I] One objection raised to them is that neither defines the correct measure of duty a host owes to his gratuitous guest riding in a car with him. In this class of cases, Virginia has definitely adopted the minority, or Massachusetts, rule, which is that the ho'st only 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." See Boggs v. Plybon, 157 Va. 30, 100 S. E. 77; Jones v. Massie, 158 Va. 121, 163

S. E. 63; Young v. Dyer, 161 Va.-, 170 S.

E. 737; Collins v. Robinson, 100 Va. 520, 169 S. E. 609; Poole v. Kelley (Va.) 173 S. E. 537.

In adopting this rule, this court 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 "grossnegligence." " * * * 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." Chief Justice Shaw, in Whitney v. Lee, 8 Mete. (Mass.) 91, 91 Am. Neg. Cas. 789.

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. "In order that one may be held guilty of wilful 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." 29 Cyc. 510.

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.

In Cleplinski v. Severn, 269 Mass. 261, 16S N. E. 722, 723, the Massachusetts court held: "The current of decisions is that when the defendant's wrong is something more than mere negligence, that is when it has the element of wilful, reckless and wanton misconduct, contributory negligence is not a defense." See annotations in 72 A. L. It. 1357; Glbbard v. Cursan, 225 Mich. 311, 196 N. W. 398.

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, tout inasmuch as this state deliberately adopted the Massachusetts rule in this class of cases, approving the reasoning in Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 16S, L. R. A. 1918C, 264, Ann. Cas. 1918B, 10SS, in the absence of statute it seems logical to apply the distinction which is applied in that state.

In Altman v. Aronson, 231 Mass. 5S8, 121 N. E. 505, 506, 4 A. L. R. 1185, 1187, this is said:

"Gross negligence is substantially and ap preciably 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. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a...