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Turk v. Turk

Decided: July 14, 1950.

GUSTAV TURK, PLAINTIFF-APPELLANT,
v.
ARTHUR TURK, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division.

McGeehan, Colie and Eastwood. The opinion of the court was delivered by Colie, J.A.D.

Colie

This appeal brings up a judgment in favor of defendant entered by the court on motion for involuntary dismissal at the close of the case.

The plaintiff and defendant are father and son. The son requested his mother to drive the car to him in Louisiana and invited the father to accompany her. While driving in Virginia the car ran off the road, rolled down an embankment into a stream. The plaintiff sued to recover damages for the severe injuries he received. The plaintiff's wife received injuries from which she died.

The evidence, when the action under review was taken, disclosed that the car was going along Route 11, a two-lane highway, between 45 and 50 miles an hour in the forenoon. Snow and ice lay alongside the road and as the car approached

a 45-degree curve, the plaintiff, seeing what looked like snow or ice, said: "Mama, please slow down. It is dangerous. The road looks as if there is ice on it." The deceased replied: "Papa, are you afraid?", accelerated to 55 miles an hour, went into a spin, tore through a fence and rolled down an embankment. A Virginia State Trooper testified that there was a 30-foot strip of ice on the highway at the curve, caused by the melting of snow at the side and running across the highway and freezing during the night. At the point of the accident, the hillsides shade the road and the sun does not hit the highway until 11 or 12 o'clock. The accident happened before 11 A.M.

The complaint was grounded upon the "grossly reckless and negligent manner" of operation. More specifically:

"(a) In operating the said automobile at a high and excessive rate of speed with knowledge of the fact that the said highway was in an icy condition.

"(b) In operating the said automobile at a high and excessive rate of speed with knowledge of the fact that a pronounced curve existed in the highway which required that the speed of the automobile be abated."

In an amended answer the defendant pleaded the Virginia statute that "No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and no personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injury to the person or property of such guest resulting from the operation of such motor vehicle, unless such death or injury was caused or resulted from a gross negligence or wilful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator," and asserted that as the act has been interpreted by the highest court of the appellate jurisdiction in the State of Virginia, the above-named plaintiff, Gustav Turk, does not now have, nor has he had any cause of action for damages against the said defendant, Arthur Turk.

On the motion for dismissal, the defendant's counsel submitted to the court certain decisions of the Virginia ...


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