The opinion of the court was delivered by: ADKINS
The question in this case is whether defendant's negligence was gross or ordinary.
The accident occurred in Virginia, on Sunday February 13, 1938. Defendant owned and drove a new Ford car in which plaintiffs and a Mrs. Taylor were riding when the car struck a tree causing the injuries to plaintiffs. Defendant was the adopted son of Mrs. Taylor. Plaintiffs are husband and wife; the female plaintiff was the niece of Mrs. Taylor, at whose home all the litigants lived.
Defendant, an inexperienced driver, bought the car in January, and obtained his driver's license about ten days before the accident. Mrs. Taylor desired to visit a sister of Mrs. Krueger who lived in Urbana. Defendant invited plaintiffs to accompany Mrs. Taylor and himself on the trip.
The day was bright and clear. The party started about 8 o'clock a.m. and the accident occurred three to four hours later about ten miles before reaching Urbana. Shortly before the accident Mr. Krueger offered to take the wheel but defendant preferred to complete the trip himself.
Of the eyewitnesses only the testimony of Mr. Krueger and defendant was important so far as the accident was concerned.
Mr. Krueger, who occupied the rear seat, testified that about 3 to 5 seconds before the accident he saw the car gradually leaving the road and called to defendant not to hit the tree.
Defendant testified that he was feeling tired; that he was driving in the middle of the road; and as he approached the curve desired to get on the right-hand side of the road and turned the wheel to the edge of the road; that he then saw the tree but could not remember what happened between that time and the collision; he estimated the tree to be 15 feet away when he turned to the edge of the road.
Defendant moved for a directed verdict on the ground that the evidence failed to show gross negligence. This motion being overruled, the jury found in favor of each plaintiff.
Defendant has now moved to set aside the verdict and to enter judgment for defendant, or, in the alternative, for a new trial.
Counsel agreed that under the Virginia law plaintiffs could not recover unless gross negligence was shown.
Counsel also agreed to the definition of gross negligence given by Rugg, C.J., in Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505, 4 A.L.R. 1185, and approved in Thomas v. Snow, 162 Va. 654, 174 S.E. 837, and in Wright v. Osborne, 175 Va. 442, 9 S.E.2d 452. Accordingly the jury was charged as follows --
"Negligence, without qualification, and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of ...