Va. Ry. & Power Co v. Gorsuch

• Decision Date: 15 March 1917
• Citation: 91 S.E. 632
• Court: Virginia Supreme Court
• Parties: VIRGINIA RY. & POWER CO. v. GORSUCH.

91 S.E. 632

(120 Va. 655)

VIRGINIA RY. & POWER CO.

v.GORSUCH.

Supreme Court of Appeals of Virginia.

March 15, 1917.

Error to Circuit Court of City of Richmond.

Action by Mrs. Sophia Gorsuch against the Virginia Railway & Power Company. Judgment for complainant, and defendant brings error. Affirmed.

H. W. Anderson, A. B. Guigon, and Thos. P. Bryan, all of Richmond, for plaintiff in error.

J. Kent Rawley and M. J. Fulton, both of Richmond, for defendant in error.

PRENTIS, J. A collision occurred at the intersection of Eighth and Grace streets, in the city of Richmond, on the night of September 19, 1914, between 11:30 and 12 o'clock, between a west-bound automobile and a north-bound street car of the Virginia Railway & Power Company. The occupants of the automobile.were Mr. Thomas H. Gorsuch; his wife, Sophia; and their friend, Mr. John F. Stephenson. The front part of the automobile was seriously damaged, and Mrs. Gorsuch was injured.

Mr. Gorsuch was employed by the Virginia Railway & Power Company to do some work in the city of Richmond in connection with dismantling certain plants on Brown's Island and re-erecting them on Belle Isle. His wife lived in the city of Baltimore. She owned the automobile referred to, but Mr. Gorsuch, shortly, before the accident, had told her that he had so far to walk to his work it would be a convenience to him to have the use of the automobile in Richmond, and she had sent it to him, and it had been in Richmond and in his possession for about a week before the date of the accident. On the afternoon of the day of the accident, Mrs. Gorsuch came from Baltimore to Richmond for a visit, was met at the train by her husband with the automobile, and after a pleasure ride Mr. Stephenson was invited to go with them to a local hotel, where the party had something to eat with some beer (though there is no suggestion of intoxication), and after watching the dancing they started home about 11:30 p. m. Within one square after the automobile started, the collision occurred. At that time the surface of Grace street was torn up because the company was relaying or repairing its tracks at that point. The excavations made it necessary to provide a temporary crossing over the tracks at the place of the accident, which consisted of railroad ties laid alongside of each other, making a crossing about twelve feet wide.

1. One of the errors assigned is that after the evidence had been concluded, and the defendant company had demurred to the evidence because it had not been proved that the street car was the property of the Virginia Railway & Power Company, although the plaintiff, Mrs. Gorsuch, had rested and concluded her case, after the statement of the grounds of demurrer, the court allowed her to reopen the evidence and prove the ownership of the street car.

There is no merit in this assignment. At that stage of the proceedings they were within the control of the trial court, and it was the duty of the judge to permit, the plaintiff to prove a fact which had been inadvertently omitted, but about which there was no doubt whatever. Had the court refused to do so, it would have been reversible error. Matters of this sort are within the discretion of the trial court and will not be reviewed unless such discretion is exercised in an arbitrary or obviously improper manner. N. & W. Ry. Co. v. Coffey, 104 Va. 670, 51 S. E. 729, 52 S. E. 367; Daniels v. Thicker Fuel Co. (W. Va.) 90 S. E. 841; Burns Bros, v. Morrison, 36 W. Va. 423, 15 S. E. 62; Cook v. Raleigh Lumber Co., 74 W. Va. 503, 82 S. E. 327.

2. Another error assigned is the failureof the court below to instruct the jury that the contributory negligence of the husband, Mr. Gorsuch, should be imputed to Mrs. Gorsuch in bar of her recovery.

The doctrine of imputable negligence has been much discussed, and the books are full of cases dealing with the question. There are some conflicts in the decisions, but it may be regarded as settled by the overwhelming weight of authority that the negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver. The negligence of the servant is imputed to the master, because the master employs and can discharge the servant and direct his actions. It seems to be well settled that the negligence of a husband driving an automobile is not, as a general proposition, imputable to his wife merely because of the marital relation; nor is the negligence of the driver of an automobile imputable to his guest merely because he is riding with him by invitation. Anthony v. Kiefner, 96 Kan. 194, 150 Pac. 524, L. R. A. 1915F, 876, Ann. Cas, 1916E, 268; Ann. Cas. 1912A, 649; Reading Township v. Telfer, 57 Kan. 798, 48 Pac. 134, 57 Am. St. Rep. 355; 110 Am. St. Rep. 289; Shultz v. Old Colony R. Co., 193 Mass. 309, 79 N. E. 873, 8 L. R, A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402; Wacbsmith v. B. & O. R. Co., 233 Pa. 465, 82 Atl. 755, Ann. Cas. 1913B, 679; St. Louis & S. F. R. Co. v. Bell (Okl.) 159 Pac. 336.

It is earnestly claimed, however, that, because of the fact that Mrs. Gorsuch owned the automobile involved in this collision, none of the rules above stated are applicable to this case, and that Mrs. Gorsuch, as the owner of the machine, had such control, or right of control, over it as to make her responsible for the negligence of her husband.

We cannot agree with this suggestion. Mr. Gorsuch was the gratuitous bailee of her automobile and had been for a week before the accident. His control of it while his wife remained in Baltimore was as absolute as if he had owned the machine, and the casual visit of Mrs. Gorsuch to Richmond did not change this control.

The case of Hart field v. Roper & Newell, 21 Wend. (N. Y.) 615, 34 Am. Dec. 273, decided in 1839, is instructive. Newell had demised his team for a term of two years, which had not expired at the time of the injury, to his son-in-law and codefendent, Roper. The accident, however, occurred when Newell, the owner of the team,...