concurring: I concur in the well-considered opinion written for the Court by J ustice Denny that the evidence shows the plaintiffs on this occasion were not “guests without payment” for the transportation, within the meaning of the Virginia statute, and that plaintiffs were entitled to go to the jury on the issue of ordinary negligence.
However, while it thus becomes immaterial on this appeal, I desire to express my disagreement with the statement in the opinion that, in the absence of such showing as to the status of the plaintiffs in relation to the transportation, the evidence was insufficient to be submitted to the jury on the question of gross negligence which, otherwise, would have been essential to the maintenance of plaintiffs’ action.
The plaintiffs’ evidence tended to show that the plaintiffs were injured as result of a collision between the defendant’s automobile in which plaintiffs were riding, and an automobile driven by the witness Whittle. The collision occurred on the night of 17 January, 1948, on the North-South U. S. Highway No. 1 near South Hill, Virginia. At this place the highway is surfaced with concrete 30 feet wide divided by white lines into three traffic lanes, and is substantially level and straight. At the time it was raining and had been for some time, and the windshield wiper on defendant’s automobile was not working properly, blurring the driver’s vision. Defendant’s automobile was proceeding north on the east lane at a speed of 45 miles per hour, behind three other automobiles proceeding in the same direction. The automobile driven by Whittle wras proceeding south in the center lane at a speed of 10 to 15 miles per hour, with headlights burning, and had been in that lane for 75 yards, Whittle intending to turn off to the left into a side road 33 yards south of the point where the collision occurred. The three automobiles in front of the defendant passed Whittle, and then suddenly the defendant turned his automobile with unchecked speed to his left into the center lane and ran almost head-on into Whittle’s car. This was done so quickly and when so close *785that Whittle had only time to “cut a little” to his left, and the right side of defendant’s automobile struck the right front of Whittle’s automobile. The Whittle car stopped on the highway about where it was struck, heading southwest, and the Walker car after the impact ran across and beyond the highway 60 feet and turned completely around heading south. Whittle testified, “I didn’t know whether he (defendant) was intending to pass the other cars or what, but he pulled out from behind the other cars” into the center lane in front of witness’ car and came “straight into me.”
The defendant did not testify and offered no evidence. The picture thus presented by plaintiffs’ evidence when viewed in the light most favorable for them shows the defendant under these circumstances of night, rain, wet pavement, and much traffic, with his vision obscured and blurred by rain on his windshield, driving at a speed of 45 miles an hour from the right-hand lane across the white line into the center lane in the face of a lighted oncoming automobile already in that lane (in violation of the Virginia statute), and driving “straight into” a head-on collision with it.
In my opinion this evidence would have been sufficient to have required submission of the question of gross negligence to the jury. According to the decisions of the Virginia Supreme Court which must be regarded here as authoritative in the interpretation of a Virginia statute, the distinction between ordinary and gross negligence is one of the degree of inattention, both differing from willful and intentional wrong. Wright v. Osborne, 175 Va. 442, 9 S. E. (2) 452; Thornhill v. Thornhill, 172 Va. 553, 2 S. E. (2) 318. “Whether the conduct of an automobile driven under given circumstances constitutes gross negligence is generally a question of fact for the jury.” Smith v. Turner, 178 Va. 172, 16 S. E. (2) 370. In that case the defendant drove his car at excessive speed across the path of the oncoming Smith car and without seeing or heeding its approach. It was held the question of gross negligence should have been submitted to the jury, and nonsuit was reversed.
It seems to be well settled that gross negligence is something more than simple or ordinary negligence and something less than willful, wanton and reckless conduct. It falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Thomas v. Snow, 162 Va. 654, 174 S. E. 837; Boggs v. Plybon, 157 Va. 30, 160 S. E. 77, 80. “What might be deemed ordinary care in one case may under different surroundings and circumstances be gross negligence. The policy of the law has relegated the determination of such questions to the jury under proper instructions from the court.” Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 (417); Boggs v. Plybon, supra; Pool v. Kelly, 173 S. E. 537 (541): Mariotta v. Aycock, 174 S. E. 831; Yonkers v. Williams, 192 S. E. 753; Farfour v. Fahad, 214 N. C. 281 (287). The *786reference in Wise v. Hollowell, 205 N. C. 286, to wanton or culpable negligence which was the issue submitted in that case, does not affect the question of gross negligence under the present Virginia statute.
What constitutes gross negligence under this statute, when considered in relation to the varying circumstances in each case presented, has been discussed in numerous recent decisions by Virginia’s highest court. These, I think, support the view I have here expressed as to the evidence in this case. McGeehee v. Perkins, 188 Va. 116, 49 S. E. (2) 304 (decided Sept. 1948); Crew v. Nelson, 188 Va. 108, 49 S. E. (2) 326 (decided Sept. 1948); Masters v. Cardi, 186 Va. 261, 42 S. E. (2) 203; Smith v. Turner, 178 Va. 172, 16 S. E. (2) 370. See also Pepper v. Morrill, 24 F. (2) 320; Campbell v. Costin, 293 Mass. 225.
I concur in the view that the evidence in the case at bar warrants its submission to the jury on the issue of ordinary negligence, but I venture to express the opinion that the record here also affords evidence of gross negligence worthy of the consideration of the jury.
As the case goes back for trial on all the evidence, in the event defendant’s evidence should throw a different light on the relationship of the parties to the transportation, the question of the degree of negligence necessary to be shown may become important.
I am authorized to say that Justice Seawell and Justice Ervin join in this opinion.