Kelly v. Checker White Cab

Case brief: template

Case name:	Kelly v. Checker White Cab
Court:	SUPREME COURT OF APPEALS OF WEST VIRGINIA
Citation; Date:	131 W. Va. 816; 50 S.E.2d 888; 1948

PROCEDURAL HISTORY
Trial court:		Appeal court (for appeal cases only):
Plaintiff:		Appellant:
Defendant:		Respondent:

Facts of the case:

    The plaintiff, Violet Kelly, instituted this action of trespass on the case in the Circuit Court of Kanawha County to recover from the defendants Checker White Cab, Inc., a corporation, and its employee, Don Withrow, damages for personal injuries sustained by her when a taxicab owned by the company, driven by Withrow and in which she was riding as his guest, skidded and ran off a public highway in that county in the early morning of January 1, 1946. At the time of the wreck the taxicab was returning from Spencer to Charleston.
    On December 31, 1945, and for some time previously, the plaintiff, a widow aged thirty four years, was employed at a restaurant located on Lee Street in Charleston and maintained living quarters in an upper story of the same building. Shortly before the hour to close the restaurant that night, the defendant Withrow, who had been employed since the year 1942 by Checker White Cab as a driver of its taxicabs, stopped at the restaurant where another woman, aged twenty three years and a friend of the plaintiff, was present when he arrived. She had been staying with the plaintiff and had planned to spend that night at her apartment. ... he was about to make [a trip] from Charleston to Spencer and return in a taxicab which he was driving to transport a soldier as a passenger to that place. ... Whatever induced the plaintiff and her companion to make the trip with Withrow free of charge as his guests is of no importance for it is admitted by both of them that they voluntarily decided to accompany him.
    When he came in the taxicab to the restaurant Withrow had a passenger for Spencer who was riding in the front seat. After the plaintiff and her friend had agreed to go they entered the taxicab and occupied the rear seat. About midnight, with these occupants of the taxicab, Withrow started from the restaurant for Spencer which is located about fifty miles from Charleston. As the trip was undertaken for the purpose of transporting to Spencer a passenger for hire, Withrow was acting within the scope of his employment in operating the taxicab from Charleston to Spencer and in returning from Spencer to the place of the accident.
    The night was cold and traffic conditions were hazardous. The presence of snow and ice on the streets of Charleston and on the road from Charleston to Spencer made the surface of the highway slippery during most of the distance between those localities. The plaintiff knew that the weather was unfavorable and that the roads were in bad condition for travel. Her knowledge of the existence of these conditions was one of the reasons which she said she had for telling her friend and Withrow that she did not want to go with them. It is evident that she and her companion also knew that persons who were not paying passengers were not permitted by its owner to ride in the taxicab. They seek, however, to justify their action in making the trip without payment of any fare by them or by Withrow for them by his invitation to take them with him free of charge. A rule of the defendant, Checker White Cab, forbade its drivers to permit anyone to ride in any of its taxicabs who did not pay the required fare. Withrow knew the rule and he had been instructed that he would be discharged if he violated it.
    About two miles from Clendenin, and at a point approximately eighteen miles from Charleston, to avoid striking a truck approaching from the opposite direction, Withrow, while driving near the center of the road, suddenly turned to the right and, immediately after passing the truck, lost control of the taxicab. It skidded, left the road, ran over an embankment to the left, and turned on its right side at the bottom of the slope. The occupants, including the plaintiff whose back was injured, crawled from the taxicab through an opening in the broken windshield and went at once to the home of a man who lived nearby where the plaintiff was cared for by his wife.
    the plaintiff went to a hospital in Charleston where she consulted a doctor and was treated for her injury. She remained at the hospital for a period of seven days. For a period of about three months she was required to wear a cast which extended from her shoulders to her hips and she was unable to return to her work until sometime in September, 1946, about nine months after the accident. At the trial in March, 1947, she still suffered from pain in her back.
    The plaintiff and her companion testified that, on the trip from Charleston to Spencer, Withrow drove the taxicab at a speed of thirty five to forty miles per hour, that the taxicab skidded three or four times, and that each time the plaintiff protested the speed at which he was driving she told him that if he did not reduce the speed she would get out. They also testified that on the return trip, between Spencer and Clendenin, a distance of about thirty miles, he drove at a speed of from fifty to sixty five miles per hour, that the taxicab slipped and skidded on the slippery road, and that they told him eight or nine times in that distance that he was driving too fast, that they were "scared to death", and that unless he slowed down they would get out. Their version was that after each protest he would reduce the speed until he thought they had forgotten but that in a short time he would again resume his excessive speed.
    He said that he did not drive at any time on the entire journey at a speed in excess of thirty five miles per hour and that his average speed was about twenty five miles per hour. He denied that the plaintiff or her companion at any time protested because of the speed at which he was driving, asked him to drive more slowly, told him they were frightened, or threatened to leave the taxicab. He also stated that he stopped the taxicab for a short time before they came to Clendenin and that he and the women got out at that place.
    By its verdict the jury has resolved the conflict in favor of the plaintiff and its finding as to the facts in dispute must be accepted as correct.

Procedural history:

    Action of trespass on the case by Violet Kelly against Checker White Cab, Inc., and others for injuries sustained by plaintiff while occupant of defendants' taxicab. To review a judgment on a verdict for plaintiff, defendants bring separate writs of error.
    The declaration contains three counts. The first and second counts charge the defendants with negligence, and the third count charges them with willful and wanton misconduct, as the cause of the injuries of which the plaintiff complains. The defendants entered their plea of the general issue, to which the plaintiff replied generally, and issue was joined. The trial, at which a special judge presided, resulted in a general verdict for the plaintiff against both defendants for $ 3,000.00. At the conclusion of the evidence offered in behalf of the plaintiff, the defendants entered their motion for a directed verdict in their favor which was overruled. They made a similar motion at the conclusion of all the evidence which was also overruled. After the verdict was returned they moved the court to set aside the verdict and grant a new trial which the court refused to do. To the final judgment, entered upon the verdict, separate writs of error, which have been argued and submitted together, were awarded by this Court on the individual petitions of the defendants.
    Reversed and new trial awarded.

Court opinion (including key issues and arguments):

    In support of the judgment of the trial court the plaintiff asserts that the conduct of the defendant Withrow, in driving the taxicab, constituted willful and wanton conduct which fixes liability for her injury upon both defendants; and that neither contributory negligence nor assumption of risk is a defense which bars her recovery. In opposition to this contention the defendants insist that the conduct of the driver as the employee and the servant of the owner of the taxicab at most amounted to negligence; that the plaintiff, in riding in the taxicab without the payment of the required fare at the invitation of the driver and in violation of the rules of the owner, was a trespasser; that there is no liability of the defendant, Checker White Cab, as owner, for the injury of the plaintiff caused by the negligence of the driver; and that contributory negligence of the plaintiff and her assumption of risk bar her right to recover damages from the defendant Withrow.
    The controlling question in this case is whether the manner in which Withrow drove the taxicab constituted negligence or willful and wanton conduct as the cause of the injury to the plaintiff.
    "Negligence conveys the idea of heedlessness, inattention, inadvertence; willfulness and wantonness convey the idea of purpose or design, actual or constructive. In some jurisdictions they are used to signify a higher degree of neglect than gross negligence. 'In order that one may be held guilty of willful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.'
    The conduct of the defendant Withrow, in driving the taxicab from Charleston to the place at which it skidded from the highway, and especially from Spencer to that point, constituted clear and almost continuous negligence, but it was not willful and wanton. ... His conduct in the operation of the taxicab after it left Spencer may have been dangerous and inexcusable, but it is manifest that he entertained no knowledge or consciousness that injury would result to him or to those riding with him if he continued to drive as he had been driving before the wreck occurred. For that reason his operation of the taxicab did not constitute willful and wanton conduct.
    In this jurisdiction the rule is firmly established that the master owes no duty to a trespasser, or mere licensee, or invitee of his servant other than the duty not to injure him willfully and wantonly....
    It is settled law in this State that the operator of an automobile owes to his guest the duty of exercising reasonable care for his safety. ... The rule applies whether the guest is an invitee or a licensee. ... Another well recognized principle is that the guest of the driver of an automobile must exercise reasonable care for his own safety and his failure to do so bars his right to recover damages from the operator in case of injury. ...
    The testimony of the plaintiff is that she observed the careless and dangerous manner in which the driver of the taxicab operated it between Charleston and Spencer and between Spencer and the scene of the wreck and that she protested vigorously against the speed at which he was driving three or four times before they arrived at Spencer and eight or nine times between Spencer and Clendenin. At both of those places he stopped a sufficient length of time to enable her to leave the taxicab if she had wanted to do so.... Yet, despite the fear which she expressed for her own safety, she again voluntarily entered the taxicab at Spencer and at Clendenin and continued to ride in it until the accident which she feared, and in which she was injured, actually occurred. ... Her failure to quit the taxicab and remain out of it at Spencer or at Clendenin, which she had the fair and reasonable opportunity to do, defeats her right of recovery against the driver of the taxicab and relieves him of liability for her injury....
    In Young v. Wheby, 126 W. Va. 741, 30 S.E.2d 6, 154 A.L.R. 919, this Court held, in Point 1 of the syllabus, that: "A guest passenger in an automobile who, with other passengers, has vigorously protested against the reckless and dangerous driving of the host, cannot maintain an action for injuries received from the driver's continued reckless conduct, occurring after a fair and reasonable opportunity to alight from the car has been presented to the passenger." ... whether her conduct in remaining in the automobile be characterized as contributory negligence or assumption of risk, the plaintiff was barred from recovery of damages for her injury. Though the particular material facts in that case are, of course, different from those in the case at bar, nothing here appears which differentiates, in substance or in legal effect, the conduct of the plaintiff from that of the plaintiff in the Young case.

Disposition of case:

Judgment reversed; verdict set aside; new trial awarded.

ECONOMIC ANALYSIS OF THE CASE