Young v. Dyer

• Decision Date: 21 September 1933
• Citation: 161 Va. 434
• Parties: GRACE YOUNG v. ELLEN DYER.
• Court: Virginia Supreme Court

Page 434

161 Va. 434

GRACE YOUNG v. ELLEN DYER.

Supreme Court of Virginia, Staunton.

September 21, 1933.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Chinn, JJ.

1. APPEAL AND ERROR — Error in Instructions — Verdict Set Aside for Want of Evidence to Support It — Case at Bar. — In the instant case, an action to recover damages for personal injuries, it was assigned as error that the court erred in refusing certain instructions asked for by the plaintiff and in granting other instructions asked for by the defendant. Plaintiff on appeal was not seeking a new trial, but was seeking a reversal of the judgment of the trial court setting aside a verdict in her favor and the reinstatement of the verdict and final judgment in her favor. As the verdict of the jury was in favor of the plaintiff, it was obvious that plaintiff was not prejudiced by the action of the court in granting and refusing instructions.

Held: Therefore, that the judgment of the lower court could not be set aside for error in the instructions.

2. AUTOMOBILES — Action by Invited Guest against Owner or Driver of Automobile — Host Only Liable if Guilty of Gross Negligence. — The rule in Virginia is that before an invited guest can hold his host liable, it must be shown that the host was guilty of gross negligence in the operation of the automobile.

3. AUTOMOBILES — Liability of Host to Guest — What Constitutes Gross Negligence. — The courts are not in accord in defining "gross negligence." Like "proximate cause," "gross negligence" can only have its proper setting when encircled by the facts and circumstances of the particular case.

4. AUTOMOBILES — Action by Guest against Host for Personal Injuries — Care Exercised by Host — Acquiescence of Guest — Case at Bar. — In the instant case, an action by a guest against her host for personal injuries, the record fails to disclose any unusual conditions. The highway was not affected by inclement weather, and no circumstances are shown which should have led the defendant to infer that a curve could not be safely negotiated at the indefinite rate of speed at which the car was being driven at the time of the accident. Certainly there was no vehement protest on the part of the plaintiff as to the operation of the car. Such exclamations as "Watch out!" and "Look out!" do not indicate any real apprehension upon the plaintiff's part in view of her statement: "We are going fifty miles an hour and it is just like riding down Main street." That statement clearly indicates complete acquiescence in defendant's operation of the automobile.

5. AUTOMOBILES — Action by Guest against Host for Personal Injuries — What Constitutes Gross Negligence of Host. — A mere failure to skilfully operate an automobile under all conditions, or to be alert and observant, and to act intelligently and operate an automobile at a low rate of speed may, or may not, be a failure to do what an ordinarily prudent person would have done under the circumstances, and thus amount to lack of ordinary care; but such lack of attention and diligence, or mere inadvertence, does not amount to wanton or reckless conduct, or constitute culpable negligence for which defendant would be responsible to an invited guest.

Error to a judgment of the Corporation Court of the city of Danville, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

Hugh T. Williams and Ida Mandle, for the plaintiff in error.

Harris, Harvey & Brown, for the defendant in error.

CAMPBELL, C.J., delivered the opinion of the court.

This action by notice of motion was brought by Mrs. Grace Young against her sister, Mrs. Ellen Dyer, to recover damages for personal injuries sustained by the plaintiff while riding as an invited guest in an automobile operated by the defendant. There was a trial by jury and the plaintiff obtained a verdict for the sum of $2,800.

The defendant filed a motion to set aside the verdict for the jury, on the ground that the verdict was contrary to the law and the evidence and was without evidence to support it. The trial court sustained the motion, and, pursuant to section 6251 of the Code, entered final judgment for the defendant.

It is assigned as error that the court erred in refusing certain instructions asked for by the plaintiff and in granting other instructions asked for by the defendant.

Plaintiff is not here seeking a new trial, but is here upon a writ of error seeking a reversal of the judgment of the trial court and the reinstatement of the verdict of the jury and final judgment in her favor. As the verdict of the jury was in favor of the plaintiff, it is obvious that plaintiff was not prejudiced by the action of the court in granting and refusing instructions. The main reliance of the plaintiff is the alleged error committed by the trial court in setting aside the verdict of the jury, upon the ground that the verdict was as a matter of law without evidence to support it, in view of the fact that plaintiff was an invited guest, and that there was no evidence that defendant was guilty of gross negligence.

In October, 1931, Mrs. Dyer, a resident of the city of Danville, invited her sister, Mrs. Young, to accompany her on an automobile ride to Charlotte Court House. Mrs. Dyer was operating the car and at the time of the accident was proceeding along an unfamiliar portion of the highway with Mrs. Young seated at her right side. The road was a curving one, and it is in evidence that for a period of time after leaving Danville the car was running at a speed of fifty miles per hour. In attempting to round a sharp right-hand curve, the car overturned and plaintiff was severely injured.

Mrs. Young's account of the trip and accident is as follows:

"We had been driving along and we thoroughly enjoyed the trip. I noticed the speedometer just before we got to the curve. I don't know how far it was and I noticed how fast we were going. We were going fifty miles an hour and I said, `We are going fifty miles an hour and it is just like riding down Main street.' Just before, I had been pointing to the curves. I would tell her to watch out or look out and when we got to this curve I said, `Watch out' and she jerked the car back and forth and when it did stop, we were both in the back seat and my head and shoulders were in the back of the car and my feet on the seat and I realized my shoulder was hurt because I couldn't move. It didn't hurt me right at that minute. She was pinned to the back of the front seat. The back of the seat had come out and she had to tear her dress to get loose. The glass was broken out the back and she pulled me to a standing position and as she did my shoulder began to hurting.

"Q. You say as you went along you pointed to the curves? What was your idea?

"A. I was afraid maybe she didn't see them.

"Q. Did she pay any attention when you pointed out this one?

"A. I don't know that she did.

"Q. How fast did she go into that curve?

"A. I don't know. We were going fifty miles just before. As well as I remember she did not check her speed."

Mrs. Dyer testified that she had been driving a car for several years; that she did not observe any warning signs as she approached the curve in question; that "you would get almost on it before you know there is a curve;" that she did not know how fast she was going at the time of the accident, but that she had the car well under control; that she observed the curve about the time her sister exclaimed claimed "Watch out!" and immediately applied the brakes; that she did not recall that her sister had warned her of the curves as they drove along the highway.

The...