Wood v. Shrewsbury, (No. 8352)

CourtSupreme Court of West Virginia
Writing for the CourtMAXWELL.
Citation117 W.Va. 569
PartiesG. 0. Wood, Executor, v. L. E. Shrewsbury
Decision Date09 June 1936
Docket Number(No. 8352)

117 W.Va. 569

G. 0. Wood, Executor,
v.
L. E. Shrewsbury

(No. 8352)

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1936.
Decided June 9, 1936.


[117 W.Va. 569]

1. Negligence

"In an action brought in this state; to recover damages for a personal injury received in another state, the right of recovery will be tested by the laws of that state." Clise v. Prunty, 108 W. Va. 635, 152 S. E. 201.

2. Actions

The trial of an action in this state must be in accordance with the procedural laws thereof, though the cause of action arose in another state.

Negligence

Where, in the trial of an action at law, the governing facts are not disputed, and are such that reasonable minds could draw but one conclusion from them, the questions of primary negligence and contributory negligence are for judicial determination as matters of law.

4. Trial-

If, in the trial of a law action, the controlling facts which appear from the evidence are so conclusive that the court would be impelled to set aside a verdict adverse to such facts, the court should direct a verdict in conformity therewith.

5. AUTOMOBILES

In an automobile guest accident case which arose in a state wherein there is no liability on the owner or operator of an automobile for injury to his guest therein, save for gross negligence, and where the evidence does not show that he

[117 W.Va. 570]

failed to exercise slight care for his guest's safety, the trial court should direct a verdict for the defendant,

6. Negligence

The doctrine of res ipsa loquitur does not apply in a case where the measure of liability is gross negligence.

Error to Circuit Court, Raleigh County.

Action by G. 0. Wood, executor of the estate of C. G. Wood, deceased, against L. E. Shrewsbury. To review an adverse judgment, plaintiff brings error.

Affirmed.

Sayre & Bowers, for plaintiff in error. McGinnis, Ashworth & Mann and Clay S. Grouse, for defendant in error.

Maxwell, Judge:

This is a writ of error to a judgment of nil capiat rendered against the plaintiff in the circuit court of Raleigh County on a directed verdict for the defendant.

The action is the outgrowth of an automobile accident in the state of Virginia.

The plaintiff's decedent, C. G. Wood, and the defendant, L. E. Shrewsbury, men of maturity, were old friends, residing at Beckley, West Virginia. On October 16, 1934, they left Beckley and drove into the state of Virginia where they spent the night at Hillsville. The defendant was the owner and driver of the automobile. The plaintiff's decedent was an invited guest of the defendant.

On the morning of October 17th, while en route from Hillsville to Mount Airy, North Carolina, misfortune overtook them. As the car proceeded down a slight grade at an estimated rate of 35 to 40 miles per hour, and just after having emerged from a ten-degree curve to the left, it ran off the hard surface of the road on the right side, across the berm, so that the wheels on that side reached the ditch which was shallow at that

[117 W.Va. 571]

point. After proceeding about forty-eight feet on the right berm and in the ditch, the defendant succeeded in getting the car back onto the road, but after continuing about eighty-four feet, it went off the road into the left ditch where, after moving about seventy feet, it turned over and seriously injured the guest. After three months' hospitalization, he died of the injuries resulting from the accident.

The burden of the plaintiff's complaint on this writ of error is that the trial court should not have directed a verdict for the defendant, but should have submitted to the jury the question of the latter's alleged negligence at the time of the accident.

The accident having occurred in the State of Virginia, it must be appraised under the law of that state. Clise V. Prunty, 108 W. Va. 635, 152 S. E. 201.

In Virginia, the owner or operator of an automobile is not liable for injury to a guest therein save on the basis of gross negligence. Boggs V. Plybon, 157 Va. 30, 160 S. E. 77; Jones v. Massie, 158 Va. 121, 163 S. E. 63; Gale V. Wilber, 163 Va. 211, 175 S. E. 739; Young v. Dyer, 161 Va. 434, 170 S. E. 737; Daub V. Weaver, (Va.) 178 S. E. 794. The rule in that state seems to have been based in the first instance on the socalled Massachusetts rule. Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168. That line of cases places gross negligence in a realm wherein there is a materially greater want of care than in situations of ordinary negligence, but in which realm there is involved something less than the willful, wanton and reckless conduct which makes a defendant liable to a mere trespasser.

In West Virginia, with respect to the degree of care owing by the operator of an automobile to a guest therein, we have not adopted the gross negligence rule of the State of Virginia and some other jurisdictions. We adhere to the rule of reasonable care. Lewellyn v. Shott, 109 W. Va. 379, 155 S. E. 115; Marple V.

[117 W.Va. 572]

Haddad, 103 W. Va. 508, 138 S. E. 113; Moorefield V. Letvis, 96 W. Va. 112, 123 S. E. 564.

The jurisprudence of this state, however, has given emphatic recognition to the usefulness of the phrase "gross negligence." Thus, in Polin...

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42 practice notes
  • City of Charleston v. Joint Comm'n, Civil Action No. 2:17-cv-04267
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • July 20, 2020
    ...involve the same basic elements, differing only in the degree of actionable inattention on the defendant's part. See Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294, 296-97 (1936) (Where the plaintiff seeks to establish gross negligence, he must present "affirmative proof tending to magnify......
  • Matthews v. Cumberland & Allegheny Gas Co., No. 10541
    • United States
    • Supreme Court of West Virginia
    • July 15, 1953
    ...Company, 135 W.Va. 688, 64 S.E.2d Page 190 231; Cooper v. Pritchard Motor Company, 128 W.Va. 312, 36 S.E.2d 405; Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Barron v. Baltimore & Ohio Railroad Company, 116 W.Va. 21, 178 S.E. 277; Linville v. Chesapeake & Ohio Railway Company, 115 W.Va.......
  • Costello v. City of Wheeling, No. 11088
    • United States
    • Supreme Court of West Virginia
    • September 9, 1960
    ...Ohio Railroad Company, 135 W.Va. 688, 64 S.E.2d 231; Cooper v. Pritchard Motor Company, 128 W.Va. 312, 36 S.E.2d 405; Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Barron v. Baltimore and Ohio Railroad Company, 116 W.Va. 21, 178 S.E. 277; Linville v. Chesapeake and Ohio Railroad Company,......
  • Griffith v. Wood, No. 12539
    • United States
    • Supreme Court of West Virginia
    • June 28, 1966
    ...335, 32 S.E.2d 742; Deskins v. Warden, 122 W.Va. 644, 12 S.E.2d 47; Darling v. Browning, 120 W.Va. 666, 200 S.E. 737; Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Broyles v. Hagerman, 116 W.Va. 267, 180 S.E. 99; Onoy v. Binford, 116 W.Va. 242, 180 S.E. 11; Harold v. Clendennen, 111 W.Va......
  • Request a trial to view additional results
42 cases
  • City of Charleston v. Joint Comm'n, Civil Action No. 2:17-cv-04267
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • July 20, 2020
    ...involve the same basic elements, differing only in the degree of actionable inattention on the defendant's part. See Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294, 296-97 (1936) (Where the plaintiff seeks to establish gross negligence, he must present "affirmative proof tending to magnify......
  • Matthews v. Cumberland & Allegheny Gas Co., No. 10541
    • United States
    • Supreme Court of West Virginia
    • July 15, 1953
    ...Company, 135 W.Va. 688, 64 S.E.2d Page 190 231; Cooper v. Pritchard Motor Company, 128 W.Va. 312, 36 S.E.2d 405; Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Barron v. Baltimore & Ohio Railroad Company, 116 W.Va. 21, 178 S.E. 277; Linville v. Chesapeake & Ohio Railway Company, 115 W.Va.......
  • Costello v. City of Wheeling, No. 11088
    • United States
    • Supreme Court of West Virginia
    • September 9, 1960
    ...Ohio Railroad Company, 135 W.Va. 688, 64 S.E.2d 231; Cooper v. Pritchard Motor Company, 128 W.Va. 312, 36 S.E.2d 405; Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Barron v. Baltimore and Ohio Railroad Company, 116 W.Va. 21, 178 S.E. 277; Linville v. Chesapeake and Ohio Railroad Company,......
  • Griffith v. Wood, No. 12539
    • United States
    • Supreme Court of West Virginia
    • June 28, 1966
    ...335, 32 S.E.2d 742; Deskins v. Warden, 122 W.Va. 644, 12 S.E.2d 47; Darling v. Browning, 120 W.Va. 666, 200 S.E. 737; Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Broyles v. Hagerman, 116 W.Va. 267, 180 S.E. 99; Onoy v. Binford, 116 W.Va. 242, 180 S.E. 11; Harold v. Clendennen, 111 W.Va......
  • Request a trial to view additional results

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