Young v. Wheby
| Decision Date | 25 April 1944 |
| Docket Number | 9497. |
| Citation | 30 S.E.2d 6,126 W.Va. 741 |
| Parties | YOUNG v. WHEBY. |
| Court | West Virginia Supreme Court |
D. Grove Moler, of Mullens, and Hutchinson & Trail of Beckley, for plaintiff in error.
Grover C. Worrell, of Mullens, for defendant in error.
ROSE President.
In the Circuit Court of Wyoming County Mrs. Carl Young recovered judgment for $500 against Fred Wheby for injuries sustained by her while a passenger in a car owned and driven by Wheby which was wrecked in the Village of Mabscott, a suburb of Beckley, in Raleigh County, to which judgment this writ of error was awarded.
The plaintiff, Mrs. Young, operated a beauty parlor belonging to another in the Village of Rhodell. The defendant operated a filling station at Allen Junction just across the line in Wyoming County. These two, with one Victor Augustine, who operated a restaurant in Rhodell, on the evening of December 3, 1941, at about eight o'clock left Rhodell for Beckley in Wheby's car to attend a vaudeville show. They stopped at Mabscott, where Augustine's wife joined the party. After the show, near midnight, they proceeded to Shady Springs, about seven or eight miles southeast of Beckley, where they spent apparently about an hour and a half in the Dutch Villa, a road house, dancing and having refreshments. Then they returned to Mabscott, where Mrs. Augustine left the party to stay with her mother, who resided there. The other three started out of Mabscott by a road which had an ascending grade of about twenty per cent but was wide and well paved. At a distance of about 500 ft. up this grade the car ran onto the berm and while Wheby was trying to get it back onto the pavement, it skidded and was wrecked, resulting in the plaintiff's injury. She would justify her recovery on the ground of Wheby's negligence and her alleged status as a guest passenger.
The defendant would reverse the judgment on the ground that, by her own evidence, she clearly assumed the risk of riding with the defendant after he had demonstrated his recklessness in driving, and upon the further ground that her negligence contributed to her injury.
Plaintiff testified that on their way from Rhodell to Beckley the party stopped at the Village of Sophia, where the two men went into the liquor store and bought a pint of whiskey, from which they and she, immediately thereafter, took a drink, and that when Mrs. Augustine joined the party at Mabscott they each took another drink. She also admits, on cross-examination, that she "had had a few drinks". She denies that there was any drinking at the Dutch Villa, but on being asked what was the defendant's condition at the immediate time of the wreck she says "he was drinking", and that Augustine, who was in the car with them, was also drinking.
There seems to have been no criticism of Wheby's manner of driving until the party left the Dutch Villa. The plaintiff says that, during the trip back from that place to Mabscott, "Mr. Wheby was driving so reckless and fast we all asked him to slow down and not drive so fast", and that "Mr. Augustine said to him if he didn't slow down and drive better, he was going to have to let him out and he would get a taxi and take his wife home"; that Mr. Augustine wanted his wife to "go to Rhodell and she said no, she wouldn't go, because of his (Wheby's) driving, and we took her to Mabscott". At another point in her testimony she says "I asked him not to drive so fast and to please be a little more careful, that he was scaring us all to death". She further states that when the three left Mabscott Mr. Augustine "asked Mr. Wheby if he wanted to let him drive, if he was all right" and that Wheby said "no, he was perfectly all right to drive".
On being asked why she did not leave the car when it stopped in Mabscott, the plaintiff stated that she "had to get back to Rhodell", where she "had an appointment for eight o'clock the next morning", and, on being asked whether this appointment justified the risk, her reply was "business before pleasure". On being further asked if Wheby's assurances sounded all right to her, she replied: .
Mrs. Augustine was called as a witness by the plaintiff and testified that on the return trip from Dutch Villa the defendant ; that although she had intended to go back to Rhodell, she "got scared at Mr. Wheby's driving and went to my mother's at Mabscott". She further corroborates the plaintiff that all three of the others in the car vigorously protested against Wheby's driving. She admits that they all took a drink when she joined the party, and says, in response to the question whether there was any drinking at Dutch Villa-- . Describing Wheby's driving, she says: "Well, he would first be on the shoulder of the road and then on the hard surface and back out on the shoulder". She was asked whether she got out and went into her home and stayed all night because of the way he was driving. She answered, "I did, and tried to get Victor to stay".
We consider that this evidence on behalf of the plaintiff clearly establishes as a fact in the case that the defendant Wheby was recklessly driving his car on the return trip from Dutch Villa to Mabscott, and that the plaintiff fully understood this situation and appreciated the danger thereof. She, of course, had a perfect opportunity to alight from the car while it was stopped at Mabscott, but with full knowledge of her danger and risk, elected to proceed. By her own statements "business before pleasure" and "it was his life as well as mine" she shows that she deliberately assumed this risk. She cannot be heard to complain of any injury that resulted from the driver's continued carelessness and recklessness after her opportunity to leave the car at Mabscott. Thenceforth she proceeded at her own risk. She had protested, of course, but words of protest, however opportune and vigorous, are not a mere formula, the utterance of which legally relieves the guest from exercising proper care and transfers all responsibility to the host driver. The guest must be alert and intelligent. If protests are vain, resort must be had to such other means of securing safety as may be presented. Specifically, she must alight from the car, if opportunity is given, to avoid exposure to further recklessness of the driver. McGaffigan v. Kennedy, 302 Mass. 12, 18 N.E.2d 344; Lynn v. Goodwin, 170 Cal. 112, 148 P. 927, L.R.A.1915E, 588; Bourestom v. Bourestom, 231 Wis. 666, 285 N.W. 426; Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162; Wilson v. Hill, 103 Colo. 409, 86 P.2d 1084; Donelan v. Wright, 148 Kan. 287, 81 P.2d 50; Blazer v. Freedman, 165 Wash. 476, 5 P.2d 1031; Lorance v. Smith, 173 La. 883, 138 So. 871; Archer v. Bourne, 222 Ky. 268, 300 S.W. 604.
The plaintiff, with full knowledge of the defendant's drinking and present condition, and his utter lack of response to all importunities to be careful, of the terror of others in the car, and of Mrs. Augustine's withdrawal therefrom, complacently continued to ride with this reckless driver. Whether her conduct is more accurately characterized as contributory negligence or as an assumption of risk, the result is the same. She is barred from recovery of damages for her injury. No doubt on this matter existed to be submitted to a jury. The court can see that the plaintiff, as a matter of law, has failed to make a case. The motions to direct a verdict for the defendant should have been sustained. Accordingly, the judgment will be reversed and the verdict set aside.
The case of Gilmore v. Huntington Cab Co., 124 W.Va. 469, 21 S.E.2d 137, is not a precedent for the sustaining of the present judgment. There, it was held that it was not conclusively shown that the injured guest knew of the driver's drunken condition, and she had no opportunity to escape from the car after the reckless driving began.
As a new trial may be had it is necessary to consider some other matters in the case. On cross-examination the...
To continue reading
Request your trial