Bartlett v. Mitchell

• Decision Date: 14 March 1933
• Docket Number: (No. 7278)
• Citation: 113 W.Va. 465
• Court: West Virginia Supreme Court
• Parties: Elizabeth Bartlett v. Dorsey L. Mitchell

113 W.Va. 465

Elizabeth Bartlett

v.Dorsey L. Mitchell

(No. 7278)

Supreme Court of Appeals of West Virginia.

Submitted February 7, 1933.

Decided March 14, 1933.

1. Negligence

The relationship of husband and wife is not. of itself, sufficient to constitute the wife the joint enterpriser of the husband, when the purpose of their trip together is merely that each may attend separately to errands of usual interest to persons in like situation.

2. Trial

It is not error to refuse a special interrogatory to the jury when the answer thereto would be immaterial, and it is immaterial unless the answer, if contrary to the general verdict, would control it. Griffith v. American Coal Co., 78 W. Va. 34. 88 S. E. 595.

3. Trial

a special interrogatory to the jury requiring the statement of a conclusion or opinion, as distinguished from matter of fact, by way of answer, will not be given. Rimy an v. Water & Light Co., 68 W. Va. 609, 71 s. E. 259.

4. Trial

It is not error for the trial court to refuse special interrogatories to the jury in a case when the issues are few and uncomplicated. Lovett v. Lisagor, 100 W. Va. 154, 130 S. E. 125.

Error to Circuit Court, Harrison County. Action by Elizabeth Bartlett against Dorsey L. Mitchell. To review an adverse judgment, defendant brings error.

Affirmed.

Homer Strosnider, I). O. Mitchell and L. G. Williams, for plaintiff in error.

Powell & Clifford, for defendant in error.

Kenna, Judge:

Plaintiff in error complains of a judgment of the circuit court of Harrison county against him in the sum of $2,000.00 entered on the 3rd day of June, 1931, in an action of trespass on the case growing out of an automobile collision resulting in personal injury to the plaintiff below. We have before us only the assignments of error contained in the petition for the writ. Plaintiff in error filed no brief nor did he appear to argue the case orally. The defendant in error filed a brief and also argued the case orally.

Elizabeth Bartlett, a woman 60 years old, was driving with her husband, Salathiel G. Bartlett, a man of 69, together with the son of Mrs, Bartlett, Edward Conner, a young man 23 years of age, in a 1920 model Baby Overland car eastward on East Main Street in the City of Clarksburg between one and two o'clock in the afternoon on November 12, 1930. They had driven to Clarksburg from their home nearby in Taylor County. Each had errands in town, but there would seem to have been no common purpose in the trip save that which might naturally arise out of their family relationship. Bartlett was driving, his wife seated at his right, and the young man on the back seat. They approached Park Avenue, which runs into East Main Street from the north but does not cross it, traveling up a grade of about* 2 1/2% and were followed by the automobile of E. T. King. Traveling west (the opposite direction from the Bartlett car) on East Main Street and on the opposite side of Park Avenue, the automobile of Roy Ash was approaching, and traveling in the same direction as Ash and east of his car was the taxicab of the defendant. The two last named cars were traveling down a grade of approximately the same declivity as plaintiff's car was traveling up. The streets were damp from a recent rain.

There seems to be substantial agreement in the proof up to this point, The departure is in what took place as the cars came near and into the half intersection formed by East Main Street and Park Avenue.

The testimony of plaintiff shows that as Bartlett drove his car to a point bringing him in line with the west side of Park Avenue, he either slowed down to a speed of between five and ten miles an hour, or stopped, signaling with his left hand either for a stop or for the left-hand turn that he was about to make into Park Avenue. The King car slowed down correspondingly without passing. At this time the Ash car. approaching from the opposite direction and on Bartlett's left, was from 100 to 250 feet away and traveling at a speed of about 15 miles an hour. Bartlett's view of defendant's taxicab was obscured by the Ash car. Calculating that it was safe to turn into the intersection and having observed the speed of the visible oncoming traffic. Bartlett put his car in low gear and at a speed of 15 miles an hour, rounding the center of the half intersection, he turned to the left, crossed the street ear track and reached a point beyond the center of the half intersection. The King car continued to travel slowly east on Main Street. The Ash car was approaching at a speed which would have let Bartlett pass in front of it. Then the taxicab "whipped around" to the left of the Ash car. traveling at some thirty to thirty-five miles an hour, attempted to cut to the left of Bartlett, skidded, sideswiped the Bartlett car with a severe impact, and careened into the King car before it came to a stop. So much for plaintiff's version.

The defendant, on the other hand, contends that as Bartlett approached Park Avenue, his view and that of the car's occupants were unobstructed all the way down Main Street; and that with full opportunity to observe conditions, he carelessly made a short left turn into the path of the approaching taxicab.

The defendant contended on two theories: First, that Bartlett's negligence, if shown, is to be imputed to Mrs. Bartlett because of the fact that they were engaged in a joint enterprise. Second, that Mrs. Bartlett was guilty of negligence because she had full opportunity to observe the danger and did nothing to warn Bartlett or otherwise prevent it. If either type of negligence contributed proximately to the injury, there would, of course, be no recovery.

The court below refused to instruct the jury on the theory of joint enterprise, and this seems...