Barr v. Curry

• Citation: 137 W.Va. 364,71 S.E.2d 313
• Decision Date: 15 September 1952
• Docket Number: No. 10424,10424
• Parties: BARR, v. CURRY.
• Court: West Virginia Supreme Court

Page 313

71 S.E.2d 313

137 W.Va. 364

BARR, v. CURRY.

No. 10424.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1952.

Decided June 24, 1952.

Rehearing Denied Sept. 15, 1952.

Syllabus by the Court.

In an action for death by wrongful act resulting from fatal injuries sustained by a decedent, proximately caused by his contributory negligence and the primary negligence of defendant, there can be no recovery where the danger was not actually known to defendant but in the exercise of reasonable care should have been known, and the decedent, knowing of his peril, was physically able to escape but failed to do so.

Handlan, Garden, Matthews & Hess, Wheeling, for plaintiff in error.

Goodwin, Nesbitt, Spillers & Mead, Wheeling, for defendant in error.

LOVINS, Judge.

This action grows out of the death of Wilbur Barr who was struck by an automobile on August 21, 1950, and fatally injured while on a public road in Brooke County, West Virginia, hereinafter designated as 'Route Number 2'. Genevieve L. Barr, the wife and administratrix of the estate of Wilbur Barr, plaintiff, instituted this action in the Circuit Court of Ohio County against Robert F. Curry, defendant, the driver of the automobile which struck her husband. A verdict was returned in favor of plaintiff in the sum of $8,000. After overruling a motion to set aside the verdict and grant the defendant a new trial, the trial court rendered a judgment for the plaintiff for the amount of the verdict.

The defendant, who was engaged in the business of operating machines referred to as 'juke boxes' and other machines referred to as 'pin ball machines', on the evening of August 21, 1950, went to the home of a lady in Wheeling where he drank one bottle of beer. Thereafter he and the lady entered defendant's automobile, traveled north on Route Number 2, crossed the Ohio River, and drove to Steubenville, Ohio, where they ate their evening meal at a restaurant. From there they went to the home of a friend, where they stayed some time. Then, they went to the clubroom of the Veterans of Foreign Wars in Follansbee, West Virginia, where one of defendant's machines was located. His purpose in going to the clubroom was to service the machine. After servicing the machine, the defendant drank one beer and had two drinks of whiskey, in the course of about twenty-five or thirty minutes. About five minutes after taking the last drink of whiskey, the defendant and his companion entered the automobile and started driving south on Route Number 2.

The accident occurred on Route Number 2, at a point near the Beech Bottom Plant of the Wheeling Steel Company, where the decedent was employed. At such point, the road extends in a general north and south direction. On the west side of the road the plant where decedent was employed, as well as a parking lot, are located. On the east side, there are a number of buildings, one of which was occupied by a restaurant known as 'Tubby's Place' and another by a business operated by Mike Jordan.

A stop light is located about 800 feet south of where the accident occurred. To the north of the point of accident, there are a number of road signs. On one sign are these words: 'Signals Ahead'; on another, 'Mill Exit'; on another, '25 miles an hour'. These signs are located on the west side of the public road and on the right side of a southbound motorist. To the north of the point of accident, about 1/4 of a mile, State Route Number 2 is slightly curved. There is some indication that from the point where the decedent was struck, the road has a slight descending grade.

Decedent and three of his fellow employees left their work at about 11 o'clock, their shift having ended, crossed the road from the west to the east side and entered Tubby's Place. While there, the decedent drank coffee and purchased two loaves of bread, a pie and 6 bottles of beer. He drank no beer, however, while there.

On leaving the restaurant, Pat Galloway and Earl Gray, two of decedent's companions, were in front of Jacob Yance, another companion, and the decedent. They walked in a northerly direction along the berm on the east side of the road approximately 75 feet, and all started to cross from the east to the west side of the road, Galloway and Gray being in front, Yance being immediately to their rear and the decedent being behind Yance. They were going to a parking lot situated on the west side of Route Number 2 and to the north of the plant where they were employed, with the intention of entering an automobile owned by Gray and going to their respective homes.

The decedent, while crossing, dropped his package containing the 6 bottles of beer, at or near the center of the highway, most of them breaking when they hit the paved portion of the road. The decedent retrieved some of the unbroken bottles and was attempting to kick broken fragments of glass from the pavement when Yance said to him, 'You'd better get off the highway, there's a car coming'. At that time the lights of the defendant's automobile were visible approximately 1/4 mile to the north and the automobile was moving south. In response to the warning given by Yance, the decedent said, 'Just a second until I kick these last few pieces.' Decedent thereafter started to walk toward the east side of the road and then, in mid-step, changed direction toward the west side of the road. Decedent was facing to the north and in the general direction from which the automobile was approaching. Immediately after attempting to go to the west side of the road, decedent was struck. According to some of the testimony, his body was hurled 128 feet to the south, although there is testimony that decedent's body came to rest nearer the point of accident.

Gray, one of decedent's companions, intending to assist the decedent in removing the glass fragments from the pavement, went to a point near the center of Route Number 2, saw the headlights of the defendant's automobile approaching about one-half mile to the north, and being fearful that the automobile would not stop, walked off the road and escaped injury.

The defendant was driving his Ford automobile in a southerly direction. The defendant's companion testified they were traveling 35 miles per hour. The defendant said he was driving 40 miles per hour. Other witnesses testified that the speed of defendant's automobile was 55 or 60 miles an hour.

Defendant admits that he traveled the road frequently, that he was acquainted with the physical situation, the plant of the decedent's employer, the mill exit and other buildings located along the road at the point of the accident. He testified that he did not see the decedent until the automobile was 3 or 4 feet from decedent, although there were lights to the south of the point of the accident which would cause decedent's body to be silhouetted. There is some attempt on the part of the defendant to show that the air was misty and that visibility was impaired by some atmospheric condition. Decedent, when, struck, was wearing dark clothes.

The traffic light hereinabove mentioned was burning at the time of the accident and, according to testimony of defendant, the signal indicated that traffic should proceed on Route Number 2.

There is evidence tending to show that there were a number of pedestrians walking along the side of the road to the north of where the accident occurred.

The accident was investigated by a member of the Department of Public Safety who arrived on the scene approximately 50 minutes after decedent was struck. According to the testimony of the investigating officer, who placed the point of accident where the broken glass was found on the pavement, there were skid marks on the road 52 feet in length, and the point where the body of the decedent rested after the accident, as pointed out to the officer, was approximately 128 feet from the point where he was struck.

Immediately after the accident, the decedent's body was removed to a first aid station nearby and from there to a hospital where he died August 27, 1950.

Aside from questions raised relating to the court's charges and instructions given and refused by the trial court, this case presents four questions: (1) Was defendant negligent? (2) Was defendant guilty of wanton and reckless conduct? (3) Was decedent contributorily negligent as a matter of law? and (4) If the defendant was negligent and the decedent's negligence proximately contributed to his death, will the doctrine of last clear chance permit a recovery?

The declaration herein alleges that the defendant committed breaches of the duty he owed decedent, in that he drove his automobile at an unlawful rate of speed; that he exceeded the speed limit of 25 miles per hour where the speed of the automobile was limited to such rate; that he failed to maintain lights on his automobile sufficiently strong to discern substantial objects for a distance of 200 feet; that he operated his automobile unreasonably and carelessly; and that he failed to keep his automobile under control so that he could stop the same within his range of vision.

Indubitably this record shows that the defendant was primarily negligent and that his conduct on the occasion of decedent's fatal injury verged on wantonness and recklessness, although we do not characterize his conduct and acts as wanton and reckless.

The defendant failed to see the three road signs; he failed to control his car; he failed to see the decedent until he was within 3 or 4 feet of him, notwithstanding that the decedent was between the approaching automobile and the flood lights located near the plant of the Wheeling Steel Company. It is shown that the decedent was wearing dark clothes at the time of the accident. But that fact alone should not have wholly prevented the defendant from seeing decedent's form on the road, backgrounded as he was by the flood lights of the Wheeling Steel Company plant. Moreover, the defendant was approaching a...