City Ice & Fuel Co. v. Dankmer

• Decision Date: 12 October 1931
• Docket Number: No. 3186.,3186.
• Citation: 52 F.2d 929
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: CITY ICE & FUEL CO. v. DANKMER.

52 F.2d 929 (1931)

CITY ICE & FUEL CO. v. DANKMER.

No. 3186.

Circuit Court of Appeals, Fourth Circuit.

October 12, 1931.

Martin Brown, of Moundsville, W. Va. (Handlan, Garden & Matthews, J. Bernard Handlan, G. Alan Garden, and Howard D. Matthews, all of Wheeling, W. Va., on the brief), for appellant.

Carl B. Galbraith, of Wheeling, W. Va. (J. J. P. O'Brien, of Wheeling, W. Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an action instituted in the District Court of the United States for the Northern District of West Virginia, at Wheeling, by the appellee, hereinafter referred to as the plaintiff, against the appellant, hereinafter referred to as the defendant. Plaintiff claimed damages in the sum of $50,000 for personal injuries claimed to have been sustained by him as a result of a collision between a truck owned by the defendant, and driven by one of its employees, and the plaintiff's automobile.

The alleged accident occurred on the 24th day of July, 1929. Prior to that time and until the 22d day of July, 1929, the plaintiff had been general manager of the defendant company, which used a number of trucks in the delivery of ice, and had been, while general manager, in charge of these trucks.

On the day of the accident plaintiff had been to the plant of the defendant. As to why he was there there was a conflict in the testimony. Witnesses for the defendant claimed he was there giving instructions as to the business. Plaintiff denied this and claimed he had gone to the plant for the purpose of getting some of his personal belongings. A new manager had been employed and had taken charge of defendant's plant the day before the accident. In any event, the plaintiff had left the plant and was seated in his automobile which was standing in the street in front of defendant's office when his car was hit by the truck driven by one of defendant's employees, and plaintiff claimed to have been injured.

On the trial in January, 1931, the jury returned a verdict for the plaintiff in the sum of $3,625, upon which verdict the court entered judgment, from which judgment this appeal was brought.

It is contended on behalf of appellant that the court erred in overruling the demurrer to the declaration, on the grounds that it did not properly plead the facts so as to show whether the accident occurred on an urban or suburban street. Section 75, chapter 43 of the West Virginia Cumulative Statutes, provides as follows: "(r) Urban street; suburban street. An urban street shall be a public road or highway, or portion thereof other than an open country highway, or suburban street. A suburban street shall be a public road, highway or portion thereof, not less than one-fourth of a mile in length, on either side of which the buildings average less than three hundred feet apart, but more than fifty feet apart."

Section 95, chapter 43 of the West Virginia Cumulative Statutes, provides that the speed permissible on an open country highway is thirty-five miles per hour, on suburban streets twenty-five miles, and on urban streets fifteen miles per hour. An examination of the declaration shows that it charges that defendant's truck was, at the time of the...