Farfour v. . Fahad

Seawell, J. Since the alleged negligent act or omission of duty, and the injury consequent thereupon, occurred in the State of Virginia, the liability of the defendants, if any, must be judged by the laws of that State. Rodwell v. Coach Co., 205 N. C., 292, 295; Wise v. Hollowell, 205 N. C., 286, 289; Howard v. Howard, 200 N. C., 574. Under the Virginia law, a guest in an automobile may not recover for simple or ordinary negligence of the host, but only when the negligence has been gross. Margiotta v. Aycock, 162 Va., 557, 174 S. E., 831; Boggs v. Plybon, 157 Va., 30, 160 S. E., 77, 80; Jones v. Massie, 158 Va., 121, 163 S. E., 63. Admitting this, plaintiff argues that she has shown gross negligence in the case at bar; and that, furthermore, where there is negligence shown, it is for the jury alone, at least under the circumstances of this case, to say whether it is ordinary or gross, the difference being one of degree only, and the verdict in favor of the plaintiff withdraws that phase of the case from review, citing Thomas v. Snow, 174 *286 S. E. (Va., 1934), at pages 838 and 839; Yonker v. Williams, 192 S. E. (Va., 1937), 753, 755. Considering tbe evidence on defendants’ motion for judgment of non-suit in tbe light most favorable to plaintiff, we may well doubt wbetber there is sufficient evidence of negligence, either simple or gross, to go to the jury. It is agreed by both counsel for plaintiff and counsel for defendants that the doctrine res ipsa loquitur does not apply — by the plaintiff’s counsel because, as they contend, they have shown the negligent cause of the collision; by the defendants’ counsel because, as they contend, the collision itself might point to many things, some of them not inconsistent with due care. Kline v. Buten, 169 Wis., 395; Butner v. Whitlow, 201 N. C., 749, 751, 161 S. E., 389; Rigsby v. Tritton, 143 Va., 903, 129 S. E., 493. But plaintiff emphasizes two phases of the evidence as showing negligence: The testimony of H. Simon, with attendant circumstances, from which plaintiff contends it may he inferred that the driver of the car negligently ignored premonitions of sleep; and evidence that at the time of the collision with the curb the driver was on the wrong side of the road, in violation of the Yirginia traffic law. As to the first proposition, it may be conceded that if the evidence is sufficient to warrant the inference of fact suggested, plaintiff might recover on a showing of gross negligence. Lee v. Moore, 191 S. E. (Va.), 589. The only evidence which the plaintiff points out as warranting an inference of drowsiness or sleep is the statement of Simon to the effect that Zaytoun admitted after the occurrence that his eyes were tired, and such circumstances as may have strengthened or given further significance to such statement. We think this circumstance, as evidence that a condition of drowsiness or sleepiness had supervened, is wanting in relevancy, and the suggested inference is speculative and unwarranted; and the evidence for the plaintiff strongly tends to contradict that theory. The fact that the defendants did not object to the introduction of this testimony, which might have been relevant from other points of view, is not material, since we are discussing only its probative value. As to the other proposition, that is, that the collision with the curbing was caused because of the negligence of the defendant Zaytoun in driving on the left-hand lane of a one-way road, we have to examine the conditions of traffic existing at the time of the occurrence, as well as the apparent purpose of the Yirginia law requiring that the driver of an automobile use the right-hand lane. The evidence shows that the road was free from traffic — no cars going or coming either way — and the apparent purpose of the statute was to prevent collisions with oncoming or passing cars by requiring the driver *287 to keep within Ms own. lane. Tbe disaster could hardly be attributed to tbe violation of tbis particular traffic law. While, of course, it is true that tbe defendant would not bave come in contact with tbe left-band curb if be bad been driving on tbe rigbt-band side, tbis may bave served merely to shift tbe location of tbe accident, just as tbe stage reached in their journey located it, geographically, in tbe State of Yirginia. That tbe car went off tbe left-hand side of tbe road, under tbe circumstances, seems to us to bave no more significance than if it bad gone off tbe rigbt-band side, which seemed to offer equal facilities for dangerous contact. “Tbe breach of a statute is negligence per se, but there must be a causal connection between tbe disregard of tbe statute and tbe injury inflicted.” Burke v. Carolina Coach Co., 198 N. C., 8, 150 S. E., 636; Ledbetter v. English, 166 N. C., 125, 81 S. E., 1066; Chancey v. R. R., 174 N. C., 351, 93 S. E., 834; Elder v. R. R., 194 N. C., 617, 140 S. E., 298; Gaines v. Campbell, 159 Va., 504, 514, 166 S. E., 704; Gilley v. Simmons, 145 Va., 549, 134 S. E., 550. At any rate, we cannot see in it anything approaching gross negligence. While tbe Yirginia courts regard tbe difference between simple, or ordinary negligence, and gross negligence, as one of degree, and while ordinarily tbe evidence must be submitted to tbe jury upon proper instructions from tbe court as to tbe degree of negligence involved (Thomas v. Snow, supra; Yonker v. Williams, supra), we do not understand that tbe verdict of tbe jury is necessarily conclusive, and tbe matter beyond review in tbe appellate court. Boggs v. Plybon, supra, Margioita v. Aycock, supra. Stubbs v. Parker, 169 Va., 683, 192 S. E., 820, 822, quotes with approval from Margiotta v. Aycock, supra: “Of course tbe jury’s verdict is not always conclusive. In cases of ordinary negligence tbis Court bas always freely exercised its right to say that it is unsupported by tbe evidence. By the same token it bas tbe right to say, notwithstanding tbe verdict, that there is no evidence whatever of gross negligence.” Jones v. Massie, supra; Young v. Dyer, 161 Va., 434, 170 S. E., 737; and White v. Gregory, 161 Va., 414, 170 S. E., 739. Even making tbe cautious approach to tbe subject required under tbe rule in Thomas v. Snow, supra, and Yonker v. Williams, supra, we feel free to say that if there was any negligence of tbe defendants at all, it was no more than simple or ordinary negligence, and there is no evidence of gross negligence in tbe record. Boggs v. Plybon, supra; White v. Gregory, 161 Va., 414, 170 S. E., 739; Young v. Dyer, supra. We therefore think there was error in refusing defendants’ motion for judgment as of nonsuit, and tbe judgment is Reversed.