Atlantic Greyhound Lines v. Skinner

Hudgins, J., delivered the opinion of the court. This action was instituted to recover damages for the wrongful death of J. P. Hamilton, who was killed while a passenger on a bus operated by the Atlantic Greyhound Lines from Bristol, Tennessee, through Virginia, to Washington, D. C. The trial resulted in a verdict for $7,500 on — 430 — which judgment was entered. Defendant in the trial court sought and obtained this writ of error, which brings the proceedings before this court for review. While there are other assignments of error, the two major questions presented are: (1) Whether Hamilton was a passenger for hire at the time he was killed, and (2) whether the evidence, as a matter of law, convicts the defendant carrier of gross, wanton or wilful negligence. The Southeastern Greyhound Lines, another separate and independent interstate carrier of passengers, acquired in Philadelphia six new buses to be used by it on routes running out of Birmingham, Alabama. In June, 1936, this carrier applied to and received from defendant carrier six one-way passes over its lines from Bristol, Tenn., to Washington, D. C., to be used by the six bus drivers whom the Southeastern Greyhound Lines expected to send from Birmingham to Philadelphia for the new buses. J. P. Hamilton, one of the six employees of the Southeastern Greyhound Lines en route to Philadelphia on this mission, was killed when one of defendant’s buses ran off the highway and turned over near Natural Bridge. When Hamilton entered the bus of the defendant carrier at Bristol, he offered for passage one of these six passes. His name was signed to the following stipulations and condition printed on the back: “In consideration of the issue of this free ticket, I hereby assume all risk of accident and injury and expressly agree that Atlantic Greyhound Lines, Greyhound Lines, and/or associated companies, or any other person, firm or corporation, operating its lines, or over or upon the same, shall not be liable, under any circumstances, to me, or persons claiming under or through me, whether occasioned by negligence of its agents or employees or otherwise, for injury to me, or loss or damage to my property or property in my possession, and further agree that as to transportation under this ticket, said company shall not be regarded as a common carrier, either of passengers or goods. I further warrant that I am qualified to accept this ticket, and that I will not use same in violation — 431 — of the State or Federal laws. I further agree not to use this free ticket to the exclusion of fare-paying passengers. If presented by anyone other than myself said company may take up and cancel this ticket, and collect full fare. By my signature hereon I accept the foregoing conditions and adopt the statements therein contained.” When these stipulations and conditions were offered in defense of the action, the trial court held them void and submitted the case to the jury on the theory that Hamilton was a passenger for hire, and entitled to that high degree of care which a common carrier owes to such pasengers. It is conceded that J. P. Hamilton was on an interstate journey at the time of the accident, hence the validity of the conditions on the pass must be determined solely by Federal law. Williamson v. Seaboard Air Line Ry., 136 Va. 626, 118 S. E. 255; McGuire v. Atlantic Coast Line R. Co., 136 Va. 382, 118 S. E. 225; Manieri v. Seaboard Air Line Ry. Co., 147 Va. 415, 137 S. E. 496; and Southern Ry. Co. v. Wilmouth, 154 Va. 582, 153 S. E. 874. The 1935 National Motor Carrier Act, part 2, sec. 217 (b), 49 U. S. C. A., sec. 317(b), provides as follows: “No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any sevice in connection therewith between the points enumerated in such tariff than the rates, fares and charges specified in the tariffs in effect at the time; and no such carrier shall refund or remit in any manner or by any device, directly or indirectly, or through any agent or broker or otherwise, any portion of the rates, fares, or charges so specified, or extend to any person any privileges or facilities for transportation in interstate or foreign commerce except such as are specified in its tariffs: Provided, That the provisions of section 1(7) and 22(1) of this title shall apply to common carriers by motor vehicles subject to this chapter.” The reference to other sections in the above statute is to the Interstate Commerce Act, U. S. C. A., Title 49, originally known as the Hepburn Act, adopted June 29, 1906. Prior — 432 — to the adoption of this act by Congress, the United States Supreme Court had declared that it was contrary to sound public policy to permit a common carrier to stipulate for exemption from liability for the negligence of itself or its servants; that the rule applied both to the carriers of goods and the carriers of passengers for hire, “and with especial force to the latter;” and that a passenger traveling on a pass given for the purpose of taking care of livestock on the train was a passenger for hire. New York Central R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 9 S. Ct. 469, 32 L. Ed. 788. This rule of public policy did not include a passenger to whom transportation was gratuitously furnished. As to such a passenger, such stipulations against negligence were valid. Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 24 S. Ct. 408, 48 L. Ed. 513; Boering v. Chesapeake Beach Ry. Co., 193 U. S. 442, 24 S. Ct. 515, 48 L. Ed. 742. In Grand Trunk Ry. Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535, it was held that a person traveling on a pass and making the journey for the mutual interests of the carrier and himself was a passenger for hire. These principles were firmly established prior to June, 1906, when the Hepburn Act was adopted, the pertinent parts of which act, as amended, now provide: “No common carrier subject to the provisions of this chapter, shall, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; * * * ; to necessary caretakers of livestock, poultry, milk, and fruit; to employees on sleeping cars, express ears, and to linemen of telegraph and telephone companies; * * * ; to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the common carrier is interested, * * * : Provided, That this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families; * * * : And provided further, That this provision shall not — 433 — be construed to prohibit the privilege of passes or franks, or the exchange thereof with each other, for the officers, agents, employees, and their families of such telegraph, telephone and cable lines, and the officers, agents, employees and their families of other common carriers subject to the provisions of this chapter: * * * . Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than $100 nor more than $2,000, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation shall be subject to a like penalty.” (Italics supplied.) 49 U. S. C. A., sec. 1 (7). This act, as applied to the question of transportation on a pass given to the wife of an employee who was injured on an interstate journey, was first construed in Charleston & Western Carolina Ry. Co. v. Thompson, 234 U. S. 576, 34 S. Ct. 964, 965, 58 L. Ed. 1476. In an opinion delivered by Mr. Justice Holmes, this was said: “The main question is whether when the statute permits the issue of a ‘free pass’ to its employes and their families it means what it says. The railroad was under no obligation to issue the pass. It may be doubted whether it could have entered into one, for then the services would be the consideration for the duty and the pass and by section 6 [49 U. S. C. A., sec. 6] it was forbidden to charge ‘a greater or less or different compensation’ for transportation of passengers from that in its published rates. The antithesis in the statute is between the reasonable charges to be shown in its schedules and the free passes which it may issue only to those specified in the act. To most of those enumerated the free pass obviously would be gratuitous in the strictest sense, and when all that may receive them are grouped in a single exception we think it plain that the statute contemplates the pass as gratuitous in the same sense to all. It follows, or rather is saying the same thing in other words, that even on the improbable speculation that the possibility of getting an occasional free pass entered into the motives of the employee in working — 434 — .for the road, the law did not contemplate his work as a conventional inducement for the pass but on the contrary contemplated the pass as being what it called itself, free.” It would seem, from the broad language used, that the Supreme Court, in 1914, was of opinion that all persons who were permitted by the act to receive passes should be regarded as free passengers, on the transportation of whom the carrier had a right to limit its common law liability. However, in Norfolk Southern R. Co. v. Chatman, 244 U. S. 276, 37 S. Ct. 499, 501, 61 L. Ed. 1131, L. R. A. 1917F, 1128, it was held that it was not contrary to the provisions of the Hepburn Act to hold that a caretaker of livestock, to whom a pass had been given for the purpose of looking after stock shipped, was a passenger for hire. The Supreme Court, speaking through Mr. Justice Clarke, said: “The Lockwood Case shows that livestock contracts such as we have here, providing for the transportation of caretakers of stock on free passes, were in use by carriers as early as 1859 (17 Wall. 357, 365 [21 L. Ed. 627]), and that they have continued in use up to this time is apparent from the decisions herein-before cited, from the case at bar and from many recently reported cases. Tripp v. Michigan Central R. Co., 238 F. 449. Notwithstanding the fact, as we have seen, that such transportation has been declared by a long line of decisions not to be ‘free’ in the popular sense, but to be transportation for hire, with all of the legal incidents of paid transportation, the carriers of the country have continued to issue it and to designate it as ‘free.’ “With this legal and commercial history before us we must conclude that the destination ‘free pass,’ as applied to transportation issued or given by railroad companies to shippers and caretakers of stock, had acquired a definite and well known meaning, sanctioned by the decisions of this court arid widely by the decisions of the courts of the various States, long prior to the enactment of June 29, 1906, and that, therefore, Congress must be presumed to have used the designation ‘free pass’ in the sense given to it by this judicial determination when, in section 1 of that — 435 — act, by specific exception, it permitted the continuance of the then long established custom of issuing free transportation or passes to shippers or caretakers of live stock. Kepner v. United States, 195 U. S. 100, 24 S. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655; Lawder v. Stone, 187 U. S. 281, 293, 23 S. Ct. 79, 47 L. Ed. 178, 183; Sutherland on Statutory Construction, section 333. “It results that the ‘settled rule of policy’ established by the Lockwood Case, and the decisions following it, must be considered unmodified by the Act to Regulate Commerce, that the plaintiff in charge of his stock, traveling upon a pass permitted to be issued by that act, was a passenger for hire, and that defendant’s first claim must therefore be denied.” The only other case, in which the question of passes was discussed by the Supreme Court, was Kansas City Southern Ry. Co. v. Van Zant, 260 U. S. 459, 43 S. Ct. 176, 67 L. Ed. 348, which held that the Hepburn Act controlled the issuance of free transportation to parties using it for interstate journeys, that stipulations thereon limiting the liability of the carrier were valid notwithstanding the fact that such stipulations were held void in the State where the accident occurred, and that the case was controlled by the holding in Charleston & Western Carolina Ry. Co. v. Thompson, supra. The conclusion from these decisions seems to be that whether a person within the permitted class, who is traveling on an interstate journey, shall be deemed a passenger for hire depends on whether the carrier receives compensation for the transportation. The uncontradicted evidence in the case at bar is that the Southeastern Greyhound Lines applied to, and received from defendant six one-way passes for use of its employees to make an interstate journey for its benefit. There was no agreement between the carriers to furnish each other free transportation for any purpose. Neither carrier was under any contractual obligation or legal duty to furnish free transportation to employees of the other. They were — 436 — accustomed to furnish such transportation as a matter of courtesy. In extending this courtesy no distinction is, or was, made between passes to be used by employees and members of their families making a journey on missions of their own, or passes to be used by such employees making a journey for the benefit of their employer. The form of the pass and the stipulations against liability were the same in either event. While the evidence shows that the Southeastern Greyhound Lines had issued passes for use by defendant carrier’s employees, it does not show that these passes had ever been used for the benefit of defendant carrier. There is no evidence tending to show that the defendant carrier had, or contemplated having any business which would necessitate its sending its officers, agents or employees over the lines of the other carrier. The defendant carrier received no compensation from Hamilton. The alleged benefit to defendant is based solely upon the mere possibility that sometime in the future its corporate business might necessitate the use of transportation by its employees over the lines of the other carrier. Such a consideration or possible benefit is too vague, uncertain and indefinite to constitute Hamilton a passenger for hire. The facts in the case at bar are distinguishable from those in Grand Trunk R. Co. v. Stevens, supra. In that case the defendant carrier requested Stevens to go to Montreal at its expense to consult the superintendent of defendant railway at its car department shop about a patent coupling in which both parties were interested. Pursuant to this arrangement Stevens was given a pass, from Portland to Montreal, containing a stipulation exempting the carrier from liability for negligence. While on the journey Stevens was injured and instituted action to recover damages. The court held that “the transportation of the plaintiff in the defendant’s cars, though not paid for by him in money, was not a matter of charity nor of gratuity in any sense. It was by virtue of an agreement, in which the mutual interest of the parties was consulted.” [95 U. S. 658.] — 437 — Plaintiff also relies upon Virginia Beach Bus Line v. Campbell, 73 F. (2d) 97. The facts in that case were that plaintiff, whose hotel at Hertford, N. C., was used as a passenger station or bus stop by the bus company, gave general information to the public concerning the baggage, schedule and fares of the buses and their arrival and departure. For this service she received a free pass over its lines, and was injured while traveling on an interstate journey by means of this pass. The Circuit Court of Appeals for the Fourth Circuit held that the Virginia Beach Bus Line was guilty of wilful negligence which was the proximate cause of Mrs. Campbell’s injuries. While not pertinent, it was said that Mrs. Campbell was a passenger for hire. Of course she was. She paid in service rendered for the right to be transported on missions of her own over the bus lines of defendant. Whether she or the carrier was liable for the penalties provided for breach of the provisions of the Hepburn Act was not pertinent in a controversy between private parties. See another phase of this case decided by the Supreme Court of North Carolina in Campbell v. American Fidelity & Casualty Co., 212 N. C. 65, 192 S. E. 906. Plaintiff’s contention—that the custom of interchanging passes for use by employees of the carriers constituted sufficient consideration to make the users passengers for hire— was made in Fort Wayne & Wabash Valley Traction Co. v. Justus, 186 Ind. 464, 115 N. E. 585. It appeared in that case that Justus, as director of the Marion, Bluff ton & Eastern Traction Company, had been given an annual pass over the lines of the Ft. Wayne & Wabash Valley Traction Company with the usual stipulations exempting the carrier from negligence. While using this pass for transportation over the latter lines he was killed. In an action by his administrator, the stipulations on the pass were offered in defense. The construction of a State statute similar to the Hepburn Act governed the decision. The Indiana court based its decision mainly upon the statement of Mr. Justice Holmes in the Thompson Case, supra, but made no refer — 438 — ence either to the Stevens Case or the Chatman Case. The opinion does not state whether Justus, at the time of his death, was on a personal mission or on a mission for his corporation. In Dunn v. Alton R. Co. (Mo. App.), 88 S. W. (2d) 224, 226, plaintiff, an employee of another carrier, brought action to recover for personal injuries sustained while going to and from his work. The defendant relied upon stipulations on the back of the pass to relieve it from ordinary negligence of its servants. Plaintiff contended that defendant carrier received consideration for honoring his pass, in that passes issued by the employer of plaintiff were in turn honored by defendant, “and that, consequently, by virtue of such reciprocal arrangement between the several companies, the condition printed on the back of his pass to the effect that by his acceptance and use of it he assumed all risk of injury was not valid and binding upon plaintiff.” It appeared in the evidence that the use of the pass was for the benefit of plaintiff, and not for the benefit of his employer or the defendant carrier. The court, in disposing of the contention, said: “Rather, it appears that the pass was issued to plaintiff simply as a courtesy to which he was lawfully entitled as a railroad employee, and pursuant to a custom, though not an agreement, between carriers to issue passes to each other’s employees upon a proper request therefor from the employing carrier, which passes, when once issued and accepted by the employees, were just as much available to them for use for purposes of pleasure or for matters purely personal as if and when used to secure transportation to or from the point where a run might either begin or terminate.” So in the case at bar the defendant carrier was not interested in the party who might be benefited by use of the pass. If it had been for the pleasure or business of the employees of the other carrier, the pass would have been issued and the same consideration, if there be consideration, would have been received. — 439 — In Bowman v. Pennsylvania R. Co., 299 Pa. 558, 149 A. 877, certiorari denied in 282 U. S. 849, 51 S. Ct. 27, 75 L. Ed. 752, it appeared that Bowman, as a general agent of the Erie Railroad Company, was given a pass over the Pennsylvania Railway, and, while traveling on this pass containing stipulations against negligence similar to those now under consideration, Bowman was killed. In an action brought by the administrator for wrongful death, the court held that Bowman was on an interstate journey traveling on a free pass. The question in Baltimore & Ohio S. W. Ry. Co. v. Voigt, 176 U. S. 498, 20 S. Ct. 385, 387, 44 L. Ed. 560, was whether similar stipulations against negligence of the carrier were valid as applied to an employee of an express company injured in an express car transported by the Baltimore & Ohio Railway. In holding the stipulations valid, the court said: “The .principles declared in those cases are salutary, and we have no disposition to depart from them. At the same time it must not be forgotten that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appear that they contravene public right or the public welfare. It was well said by Sir George Jessel, M. R., in Printing & N. Registering Co. v. Sampson, L. R. 19 Eq. 465: ‘It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider—that you are not lightly to interfere with this freedom of contract.’ ” — 440 — While we have cited some cases decided by State courts, the question is controlled solely by the views of the Federal court. It is true that the broad statement in the Thompson Case, supra, was modified in the Chatman Case, supra, to the extent of holding that a pass given to a person to care for livestock and other freight in transit was not a gratuity although called a free pass. In this opinion, emphasis is placed on the “settled rule of policy” established by decisions prior to 1906. So far as any policy, as to the use of passes by the employees of one carrier over the lines of another, is concerned, it would seem to be settled against the contention of plaintiff by decisions rendered prior and subsequent to the Hepburn Act. The pertinent facts in Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 24 S. Ct. 408, 410, 48 L. Ed. 513, were that Adams was employed as an attorney by several carriers and was killed while riding on a pass over the lines of the Northern Pacific Railway Company, though not employed by that company. The court stated the issue thus: “Is the company responsible for injuries resulting from ordinary negligence to an individual whom it permits to ride without charge on condition that he take all the risks of such negligence ?” Mr. Justice Brewer, speaking for the court, after citing the Voigt Case, supra, said: “The railway company was not as to Adams a carrier for hire. It waived its right as- a common carrier to exact compensation. It offered him the privilege of riding in its coaches without charge if he would assume the risks of negligence. He was not in the power of the company and obliged to accept its terms. They stood on an equal footing. If he had desired to hold it to its common law obligations to him as a passenger, he could have paid his fare and compelled the company to receive and carry him. He freely and voluntarily chose to accept the privilege offered, and having accepted that privilege cannot repudiate the conditions. It was not a benevolent association, but doing a railroad business for profit; and free passengers are not so many as to induce negligence on — 441 — its part. So far as the element of contract controls, it was a contract which neither party was bound to enter into, and yet one which each was at liberty to make, and no public policy was violated thereby.” In Boering v. Chesapeake Beach Ry. Co., 198 U. S. 442, 24 S. Ct. 515, 516, 48 L. Ed. 742, the stipulations on a free pass were held valid, although the user was not aware of the conditions. The court stated: “A carrier is not bound, any more than any other owner of property who grants a privilege, to hunt the party to whom the privilege is given, and see that all the conditions attached to it are made known.” In the stipulation signed by Hamilton, among other things he agreed; (1) That, as to transportation upon this free ticket, the company should not be regarded as a common carrier of passengers, (2) that he would not use the ticket to the exclusion of fare-paying passengers, and (3) that he waived any right to hold the company responsible for negligence of its officers, agents or employees. The evidence shows that the same stipulations were contained on any pass issued by defendant, whether the user expected or intended to use it for his own business or for the business of any other party. The last expression on the point by the Supreme Court of the United States, to which our attention has been called, is in Kansas City Southern Ry. Co. v. Van Zant, 260 U. S. 459, 43 S. Ct. 176, 177, 67 L. Ed. 348, in which this is said: “The provision for passes, with its sanction in penalties, is a regulation of interstate commerce, to the completion of which the determination of the effect of the passes is necessary. We think, therefore, free passes in their entirety are taken charge of, not only their permission and use, but the limitations and conditions upon their use; or to put it another way, and to specialize, the relation of their users to the railroad which issued them, the fact and measure of responsibility the railroad incurs by their issue, and the extent of the right the person to whom issued acquires, are taken charge of. And that responsibility and those — 442 — rights, this court has decided, the railroad company can control by conditions in the passes. Antecedently to the passage of the Hepburn Act, we decided that a passenger who accepts a free pass may exempt a carrier from responsibility for negligence, and no public policy is violated thereby. Northern Pacific Railway Co. v. Adams, 192 U. S. 440, 24 S. Ct. 408, 48 L. Ed. 513; Boering v. Chesapeake Beach Railway Co., 193 U. S. 442, 24 S. Ct. 515, 48 L. Ed. 742. “Those cases were considered and applied as giving validity to the stipulations of passes issued under the act in Charleston & Western Carolina Railway Co. v. Thompson, 234 U. S. 576, 34 S. Ct. 964, 58 L. Ed. 1476, according thereby freedom of transportation to the possessor of a pass, and giving assurance to the railroad company that its gratuity will not be given the consequences of compensated right and its incident obligations, and be a means of exacting from the company indefinite damages. In this case the prayer was for $25,000; the recovery was for $8,000. Circumstances might have made it the larger sum; and this, it is the contention and decision, is the determination of state laws which could neither permit nor forbid the gift. We cannot assent. The pass proceeded from the federal act; it is controlled necessarily in its incidents and consequences by the federal act, to the exclusion of state laws and state policies, and such is the effect of the cited cases.” (Italics supplied.) The Hepburn Act requires common carriers to charge for the transportation of passengers neither more or less than the rate published in its schedule. It permits carriers to interchange passes for use by persons within the classes named. The Supreme Court has held that the railway company has the right to fix its responsibilty for the transportation of such persons by conditions attached to the passes. If the user elects to accept free transportation with conditions annexed, what rule of public policy will be violated by holding such stipulations valid? The defendant carrier gave the pass as a gratuity. It was accepted and used by Hamilton with full knowledge of conditions and stipulations attached. Having exercised the privilege extended, — 443 — neither Hamilton nor those claiming through him should be permitted to enjoy the benefits of the privilege, and reject the burdens which were imposed as an integral part of the class of transportation furnished. The officers, agents or employees of other carriers are not forced to accept free transportation over the lines of another carrier. This is true regardless for whose benefit the journey is made. If they desire to hold the common carrier to its common law obligation, they are at liberty to deal with it as any other member of the general public. Defendant received no more, nor less, consideration than it would have received if Hamilton had used the pass for his own pleasure. The Supreme Court emphatically stated that such consideration is not sufficient to make the passage one for hire. If the consideration is not sufficient in one case,' ‘the same consideration could not be held sufficient in the other. Plaintiff further contends that even if it is held that the transportation furnished Hamilton was in the nature of a gratuity, still he is entitled to recover because the evidence conclusively convicts defendant of gross'and wanton negligence. Defendant concedes that, if its gross or wanton negligence was the proximate cause of Hamilton’s death, it is liable in this action, but it contends that on the degree of negligence there is a sharp conflict in the evidence. These contentions compel us to briefly review the evidence on the subject. The evidence for plaintiff tends to prove that the accident occurred on highway No. 11 just south of Natural Bridge. Approaching the bridge from the south there is a 1,100-foot incline leading to the crest of the hill, then the highway extends down approximately a 6 percent decline some 1,400 feet to the bridge. The hard surface is some twenty feet wide, with dirt shoulders 10 feet wide on either side. 900 feet from the crest there is a sharp 20 percent curve to the left. The hard surface in the curve is some 23 feet wide and banks 2% inches from left to right. On the right of the curve is a steel guard rail 12 inches in width — 444 — extending the length of the curve. This rail is fastened to posts 8 inches in diameter embedded 3 feet in the ground and placed 16 feet apart. There are 4 warning signs erected immediately to the right of the dirt shoulder between the crest of the hill and the curve. The headlights of a car traveling north clearly reveal these signs to the driver. The first sign is some 400 feet from the top of the hill and reads “Slow.” The second sign Is some 100 to 150 feet further down and reads “Hill Shift Gears.” The third sign is 150 feet further and reads “Speed Limit 25 Miles.” The fourth sign is placed just within the curve and consists of a large square with black stripes on a yellow background, and extending diagonally across its center was a reflector type arrow pointing left, indicating danger. On the night of June 30, 1936, which was dark and rainy, defendant’s bus, traveling on this highway en route to Washington, left Roanoke some 45 minutes late. The bus driver stated to some friends in Roanoke that he would arrive in Washington on schedule time. As he drove through the town of Buchanan, some 25 or 26 miles from Roanoke, the bus skidded on the slick road, which caused one or more passengers to become frightened. The bus was driven up the long incline and over the crest of the hill at a speed in excess of 45 miles per hour. The driver apparently gave no heed to the four warning signs and lost control of the bus as it began to skid from one side of the road to the other. It finally left the highway to the right, crossed the dirt shoulder, struck the 12-inch guard rail and uprooted 5 of the posts to which it was attached, plunged down a 6-foot embankment, and came to rest lying on its top with the wheels in the air. The driver of defendant’s bus and four passengers, including plaintiff’s decedent, were killed. Of the other 33 passengers, seven were injured and over twenty were given first aid. The evidence for defendant is quite different. It tends to show that, while the bus left Roanoke some 20 minutes late, it consumed an hour and ten minutes making the 38-mile trip from Roanoke to the scene of the accident. Dur — 445 — ing the entire 38 miles, the bus was driven very carefully with no untoward incidents. In going up the 1,100-foot incline, the driver shifted from high to one of the intermediate gears and reached the crest of the hill traveling at less than 20 miles per hour. The same rate of speed was maintained down the incline. Some 300 or more feet from the sharp curve the wheels of the bus ran over a thin coating of water, mud and slime which the recent rains had washed upon the hard surface. Thereupon his rear wheels began to skid. The driver, exercising care, was successful in pulling the bus out of this skid. Immediately thereafter the wheels ran over another abnormally slick place upon the hard surface. This caused another skid, carrying the bus against the guard rail and over the 6-foot embankment. Several passengers on the bus, called as witnesses for defendant, stated that the driver “handled the bus perfectly up until the accident,” and that, as the bus began to skid, he did “all he could in his power to hold it in the road.” On this conflict in the evidence the jury might have found that defendant was guilty of gross or wanton negligence, or it might have found that defendant was guilty of nothing more than ordinary negligence. In the one case the defendant would have been liable to plaintiff, and in the other it would not have been liable. For the reasons stated, the judgment of the trial court must be reversed, the verdict of the jury set aside, and the case remanded for a new trial in accordance with the views herein expressed. Reversed and remanded.