Juergens v. Front
| Decision Date | 08 March 1932 |
| Docket Number | 7025. |
| Citation | 163 S.E. 618,111 W.Va. 670 |
| Parties | JUERGENS v. FRONT. |
| Court | West Virginia Supreme Court |
Submitted March 1, 1932.
Rehearing Denied April 11, 1932.
Syllabus by the Court.
Last clear chance doctrine implies sufficient interval of time for appreciation of dangerous situation and effective effort to relieve it.
In action for injuries sustained when defendant's automobile collided with plaintiff's from rear at intersection submission of negligence under last clear chance doctrine held error.
The doctrine of the last clear chance implies a sufficient interval of time for both appreciation of the dangerous situation and effective effort to relieve it.
Error to Circuit Court, Ohio County.
Action by Joseph L. Juergens against Samuel Front. To review a judgment in favor of the plaintiff, the defendant brings error.
Reversed and cause remanded.
Erskine Palmer & Curl, of Wheeling, for plaintiff in error.
Austin V. Wood and O'Brien & O'Brien, all of Wheeling, for defendant in error.
HATCHER P.
Plaintiff recovered in the circuit court of Ohio county a judgment of $10,000 as damages for personal injuries received in an automobile collision, and defendant obtained a writ of error.
In considering the testimony of plaintiff, his answers to leading questions on examination in chief which he afterwards modified have been avoided, and, where admissions are taken from his answers on cross-examination, care has been exercised to see that he understood the questions. We also have avoided the testimony of defendant which is in conflict with that of plaintiff.
The collision occurred at the intersection of the National and Rockledge roads in the city of Wheeling about 9 a. m., August 21, 1928. Both litigants were residents of Wheeling, and both were familiar with the situation surrounding the intersection. They were close personal friends and had spent the night before the collision together at a camp outside the city. Each had his own automobile, and upon their return the following morning the defendant's car led the way until approximately 300 feet from the intersection, when the plaintiff passed the defendant on his right, and continued toward the intersection between one and two car lengths in advance and about 4 feet from the right curb. The Rockledge road was then at their right. A slight rise and stone pillars at the intersection interfered with their view of cars approaching on that road. When about 160 feet from the intersection, plaintiff saw an automobile, later shown to be that of Palmer Boyd, commencing to enter the National from the Rockledge Road. Plaintiff says: "When I saw that automobile, I didn't put my brakes on right away, I didn't know whether he was going further out or whether I was going to pass in front of him, or whether he was going by me, and I tried to figure out what he was going to do." When about 35 feet from the Boyd car, he applied his brakes hard (as shown by skid marks extending back that distance), and says very definitely that he simultaneously waved his left hand up and down outside his automobile window. Later, he attempts to say that he commenced signaling when from 60 to 100 feet from the intersection, but his last expression on when he first commenced to signal is: "I can't state any time on that, I don't know, I was still signalling just about when I hit." Seeing that he was about to run full tilt into the Boyd car, he veered to the left until only the right rear fender of his car came in contact with the left end of the front bumper of the Boyd car, which then was 7 feet out on the National road (actual measurement). By that time, plaintiff says, his car had almost stopped, when it was struck with tremendous force from behind by defendant's car, with the result that plaintiff was thrown into the road, run over by a fourth car, and most seriously injured.
The speed limit in the section of the National road where the collision occurred was 25 miles an hour. Plaintiff admits he was "going fast"--was making "in the vicinity of 35 miles an hour"--as he approached the intersection, and his witness Boyd says when he got far enough out on the National road (about 4 feet) to see plaintiff, he was from 30 to 40 feet away and was making "something beyond forty miles" an hour. Plaintiff estimates that he and defendant were making the same speed after he passed defendant and admits he knew when he swung to the left to avoid the Boyd car, that, unless defendant also swung to the left at the same time, defendant's car would run into his. He was of opinion that the signal he gave prior to the collision could be interpreted either that he meant to stop or to turn to the left.
A woman who was with plaintiff, another woman who was with defendant, and the defendant himself all testified that when plaintiff's car passed the defendant's the plaintiff was laughing and waving at the defendant. The plaintiff did not deny this testimony, although his attention was directed to it. The woman with the defendant further said that she saw the Boyd car entering the National road, when plaintiff was 35 to 40 feet from that car.
The defendant testified that the Boyd car was practically out on the National road when he first saw it; that he did not see the signal given by plaintiff just before the collision; that he did observe plaintiff's car bearing to the left and he immediately swung his car also to the left in a futile attempt to avoid the collision; and that he was making then between 40 and 45 miles an hour. (No witness gave any less estimate of defendant's speed.)
Plaintiff realizes that his own excessive speed and his own incaution were responsible primarily for his position of danger. He invokes the doctrine of the last clear chance, however, on the theory that, had the defendant been exercising due care he would have observed the Boyd car start to enter the National road as well as the signal given by plaintiff,...
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