Opinion
37557 Record No. 2083
September 13, 1939
Present, All the Justices
1. AUTOMOBILES — Action by Guest against Host — Questions of Law and Fact — Contributory Negligence — Intoxication of Defendant — Case at Bar. — In the instant case, an action by a guest to recover for injuries sustained when an automobile overturned on a curve in the road, defendant contended that plaintiff was guilty of contributory negligence because she acquiesced in the manner in which he operated his automobile and because she knew defendant had consumed so much liquor that he was an unsafe driver.
Held: That the questions of the contributory negligence of plaintiff and the intoxication of defendant were matters of fact for the jury.
2. AUTOMOBILES — Action by Guest against Host — Defense of Joint Enterprise — Case at Bar. — In the instant case, an action by a guest to recover for injuries sustained when an automobile overturned on a curve in the road, defendant contended that the parties were engaged in a joint enterprise. Plaintiff and defendant, with four other persons, went on a party arranged and suggested by defendant. After leaving a roadside place of entertainment, they set out, in accordance with defendant's suggestion, to go to an eating house about three miles distant, en route to which the accident occurred.
Held: That the theory of a joint enterprise was without merit.
Error to a judgment of the Law and Equity Court of the city of Richmond. Hon. Willis D. Miller, judge presiding.
Affirmed.
The opinion states the case.
Leith S. Bremner, Charles U. Williams and Robert Lewis Young, for the plaintiff in error.
Walter M. Evans and J. Roland Rooke, for the defendant in error.
This case grows out of the same automobile accident as that involved in the case of Yorke v. Cottle, ante, page 372, 4 S.E.2d 372, in which the opinion is to be rendered during the present term of this court.
In this case, there was a verdict by the jury for the plaintiff, awarding her the sum of $1,500.00 damages on account of the injuries which she sustained in the accident. This verdict was confirmed by the judgment of the trial court.
Perhaps the testimony in this case, given by the defendant, as a witness, as to the number of drinks or quantity of liquor that he drank and its effect upon him, was stronger and more positive than that which was given in the Cottle Case. A new witness, one Cox, was introduced in this case by the defendant, who testified that the defendant was intoxicated.
The defendant dwelt upon the contention that the plaintiff was guilty of contributory negligence and the matter of the alleged joint enterprise was stressed.
[1, 2] The first two contentions were matters of fact for the jury upon the conflicting testimony. The theory of a joint enterprise is without merit.
There is nothing to substantially differentiate this case from the Cottle Case. The latter is controlling. It is unnecessary to pass upon the motion to dismiss the writ of error as having been improvidently awarded.
Perhaps there was some tautology in the instructions which were granted. Fewer instructions would likely have been more desirable; but in the main we think the jury was soundly instructed, and that there was no prejudicial error in that regard.
We affirm the case.
Affirmed.