Bates v. Thompson ( 1959 )

Whittle, J.,

delivered the opinion of the court.

Ellis G. Bates was riding in a car owned and operated by his brother, Gordon Bates, when an accident occurred in which both were lolled. Bamma Bates, administratrix of the estate of Ellis Bates, sued Thompson, the administrator of Gordon Bates, alleging gross negligence in the operation of the automobile. The court found as a matter of law that the car was being operated in a grossly negligent manner at the time of the accident. To this finding no cross error was assigned.

The jury returned a verdict in favor of the plaintiff in the sum of $25,000. On motion of the defendant the court set the verdict aside on the ground that Ellis Bates was guilty of contributory negligence as a matter of law and entered judgment for the defendant. We granted plaintiff a writ of error.

The record before us presents a single question, i.e., does the evidence establish that Ellis Bates was guilty of contributory negligence as a matter of law.

The collision occurred on November 2, 1955, at about 8:00 p.m., in Alleghany county, approximately four miles west of Covington. The two automobiles involved, a 1947 Cadillac driven by one Wilkerson and a 1955 Buick owned and operated by Gordon Bates, crashed head-on. Both Gordon and Ellis Bates were killed instantly and Wilkerson died a few days later.

The Wilkerson automobile was traveling east and the Bates car was traveling west. The collision occurred entirely on Wilkerson’s side of the highway. It is unnecessary to relate the circumstances relative to the gross negligence of Gordon Bates. Suffice it to say that gross negligence on his part was established by the evidence and, as aforesaid, no cross error was assigned to the action of the court in so instructing the jury.

The defendant contended that the evidence established as a matter of law: that Gordon Bates was intoxicated; that Ellis knew or should have known of such intoxication; and that Ellis was guilty of contributory negligence when he continued to ride with his brother under the circumstances.

The evidence relied on by the defendant in an effort to show intoxication and the contributory negligence of Ellis discloses that Gordon (26 years of age) and Ellis (18 years of age), were employed on separate jobs in the northern part of Virginia. They were en route home to visit their parents who resided 14 miles west of Covington in the southwestern part of the State.

Gordon picked up Ellis at Fort Belvoir and proceeded down U:S. Route 11. Approximately 60 miles from the scene of the collision they were stopped by Trooper Talbert who testified that he gave Gordon a speeding ticket near Fairfield in Rockbridge county at about 6:10 p.m.; that Gordon was driving his automobile slightly over 70 miles per hour in a 55-mile zone; that the highway at that point was dual, four-lane, and comparatively straight; that although he smelled the odor of alcohol on Gordon’s breath he did not believe him to be under the influence of intoxicants, and that Ellis had had nothing to drink.

Trooper Talbert testified:

“Q. # # # You are a State Trooper—if he was under the influence of intoxicants, you would have arrested him; no question about that, is there? You knew you saw nothing about him to indicate that he was under the influence of intoxicants in order to arrest him for operating the car under the influence of intoxicants, did you?

“A. That’s correct.”

Upon signing and receiving the ticket from Trooper Talbert Gordon drove to the police station in Lexington which was approximately nine miles distant. He went there for the purpose of posting bond. Wilhelm, a clerk at police headquarters, testified that he smelled the odor of alcohol on Gordon’s breath and that he appeared unsteady on his feet; that when he would not permit him to post bond he stated “someone will catch hell for this,” and left the office. Ellis was not with his brother in the police station.

Upon leaving Lexington, the brothers drove to Covington, some 50 miles distant, where Officer Alvin Vance of the Covington Police Department stopped the Bates automobile because it was “making a crying noise”. This officer was the last person to see either of the Bates brothers alive and his interview with them took place just a few minutes before the accident occurred. On cross-examination he testified:

“Q. Mr. Vance, if I understand you, sir, you tell the jury that you saw nothing out of the way about the appearance of Gordon Bates at this time?

“A. That’s right, sir.

“Q. Seemed perfectly normal to you?

“A. Yes, sir; except that I detected alcohol on his breath.

“Q. Alcohol on his breath. But, other than that, he appeared normal?

“A. Yes, sir.

“Q. If I understand it, it was simply a screeching noise that you detected there and maybe a little racing of the engine?

“A. Yes, sir.”

The distance from where Vance interviewed Gordon Bates to the point of accident was a fraction less than four miles. Vance testified that Gordon, after the interview, drove off in a hurry and that he would have arrested him if he had had the opportunity. A few minutes later the accident occurred.

Unquestionably, when Gordon Bates left Officer Vance he was driving in a reckless manner. But within the few minutes that elapsed between the interview and the time of the collision there is no evidence to show that Ellis had an opportunity to leave his brother’s car.

At the instance of defendant the court gave Instruction No. D, as follows:

“The court instructs the jury that if you believe from the evidence in the case that as Gordon L. Bates and his brother, Ellis G. Bates, were proceeding from Fort Bel voir, Virginia, towards Covington, Gordon L. Bates commenced to drink intoxicating beverages and during the course of said drive operated his said automobile at an unreasonable and unlawful rate of speed, and was stopped and given a summons by State Trooper Talbert, in the vicinity of Lexington, and if you further believe that despite his getting a ticket, or summons, he continued to drink intoxicating beverages and to operate his automobile in a careless and reckless manner, and was again stopped in the City of Covington by Officer Vance and warned about the manner of his said operation of the Buick automobile, and if you further believe that during the happening of these events, and throughout the course of said drive, Ellis G. Bates was present and a passenger in said automobile, and had actual knowledge of the same and yet continued to ride therein, despite the fact that he had several opportunities to get out of said automobile, and if you still further believe that the proximate cause of the accident was the gross negligence of Gordon L. Bates, brought about by his drinking of intoxicating beverages which rendered him an unfit and unsafe driver, then the court tells you that Ellis G. Bates was guilty of contributory negligence, as a matter of law, in continuing to ride in said automobile, and your verdict should be for the defendant.”

The giving of this instruction was objected to by the plaintiff on the ground that in a number of respects it was not supported by the evidence; that it had not been shown that Gordon Bates was so intoxicated that his condition was apparent to observation and that this was necessary before Ellis Bates could be found guilty of contributory negligence; that “it is a finding instruction and singling out numbers of things that are not supported by any evidence at all.”

In our view, it is not necessary for us to pass upon the correctness of this instruction; in any event it was most favorable to the defendant and in the face of it the jury found for the plaintiff.

At the instance of the plaintiff the court gave Instruction No. 4, as follows:

“The court instructs the jury that under the influence of intoxicants means as follows: ‘Any person who has drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation, shall be deemed to be intoxicated.’

“The court further instructs the jury that unless you believe from the evidence that Gordon Bates had drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior as to be apparent to observation, then he would not be deemed to be under the influence of intoxicants while operating his automobile.” Gardner v. Commonwealth, 195 Va. 945, 954, 81 S. E. 2d 614, 619; Code, § 4-2(14).

There was no cross error assigned to the giving of this instruction.

Here we have a situation where trained and experienced police officers had observed Gordon Bates and definitely stated that although he had the odor of alcohol on his breath he was not under the influence of intoxicants, and that had he appeared to have been, they would have arrested him. In the light of this evidence the jury had a right to find that intoxication, not being apparent to the officers, was not apparent to the eighteen-year-old brother.

Negligence, contributory negligence, and proximate cause are generally questions for the jury. Spence v. American Oil Co., 171 Va. 62, 79, 197 S. E. 468; Steele v. Crocker, 191 Va. 873, 880, 62 S. E. 2d 850, 853; 118 A.L.R. 1120.

We have repeatedly held that if reasonable men may differ as to the conclusion of fact to be drawn from the evidence, or if the conclusion is dependent upon the weight to be given the testimony, a jury is the proper tribunal to decide the question. Steele v. Crocker, supra, 191 Va., at page 880.

We said in Spence v. Miller, 197 Va. 477, 479, 90 S. E. 2d 131, 133:

“A much closer question is whether as a matter of law the plaintiff was guilty of contributory negligence. That depends upon whether reasonable men could differ as to the facts proved by the evidence and the fair inferences therefrom. The jury’s verdict has settled the conflicts and the evidence must be considered in the light most favorable to the plaintiff. Marks v. Ore, 187 Va. 146, 152, 45 S. E. 2d 894, 896; Kidd and Taylor v. Little, 194 Va. 692, 695, 74 S. E. 2d 787, 789.”

We held in Yorke v. Maynard, 173 Va. 183, 188, 3 S. E. 2d 366, 368, that although the driver had been drinking and the plaintiff guest had knowledge of this fact, still, if it should be found by the jury that the defendant was not so intoxicated as to render him a dangerous driver, the plaintiff would not be guilty of contributory negligence. See also Yorke v. Cottle, 173 Va. 372, 4 S. E. 2d 372; Yorke v. Mason, 173 Va. 379, 4 S. E. 2d 375.

Minutes before the last lap of this journey Officer Vance observed the condition of the driver and testified that he appeared to be normal. If this officer, within a matter of minutes before the accident, was unable to detect intoxication, surely reasonable men could differ as to the conclusion of fact to be drawn from the evidence, and the finding of the jury on such fact should not be disturbed.

For the reasons stated the judgment is reversed, the verdict of the jury is here reinstated and final judgment entered thereon.

Reversed and final judgment.