Bennett v. Bartlett S., (No. 6881)
| Decision Date | 19 May 1931 |
| Docket Number | (No. 6881) |
| Citation | 110 W.Va. 478 |
| Court | West Virginia Supreme Court |
| Parties | Eileene Bennett v. James W. Bartlett et als., Etc. |
Carriers Negligence
It is now a settled rule that the owner of a motor bus operated as a common carrier, owes to passengers for hire the duty to exercise for their safety the highest degree of care which is consistent with the practical operation of the vehicle. The highest degree of care, however, is not an absolute but a relative phrase. It does not imply continuity of the most perfect human care, but the highest degree of care which a man of ordinary prudence would bestow under similar circumstances.
Error to Circuit Court, Taylor County. Action by Eileene Bennett against James W. Bartlett and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
W. Bruce Talbott, and Lawrence R. Lynch and Guy H. Burnside, for plaintiffs in error.
WycJcoff & Wyckoff, for defendant in error.
This is an action for damages for personal injury in which the plaintiff recovered a verdict and judgment for $17,500.
The alleged injury occurred in the afternoon of January 19, 1928, on the brick highway near Pruntytown, while the plaintiff was a passenger (for hire) in a public bus operated by the defendant. It was raining at the time of the accident. In rounding a curve 233 feet from a concrete bridge, the bus got partly on the right hand berm of the road and before it entirely regained the hard surface, it ran into the side wall of the bridge, which tore out its right side and caused some of the seats to "pile up" on the plaintiff. Witnesses for the defendants said that an oncoming truck was taking the middle of the road and the driver of the bus pulled over on the berm to avoid a collision, and that when about 100 feet from the bridge the left front tire blew out, obstructing the efforts of the driver to prevent the wreck. Witnesses for plaintiff testified that they did not hear the blowout; that they were in position to have noticed the truck; that they did not see it; and that excessive speed prevented the bus from rounding the curve successfully and made it run out on the berm and into the bridge. The cause of the wreck is, therefore, a jury question.
As defendants contend that plaintiff suffered no material injury whatever in the wreck, and also challenge the amount of the verdict, a somewhat detailed statement of the evidence will be made. Immediately following the accident, plaintiff went to the home of Mrs. Charlotte Evans who resides close to the bridge. The plaintiff told Mrs. Evans that she did not think she was hurt; but Mrs. Evans said that the plaintiff was so excited and frightened that she didn't seem to realize what she was saying. Shortly afterwards, W. F. Six took plaintiff to her home which was in Pruntytown. He testified that she was very nervous and excited and seemed under the impression that he was taking her away from her home instead of towards it. Dr. Shaffer, a practicing physician, saw the plaintiff shortly after her arrival home. He found her to be very nervous and unable to give the details of what had happened, and said that he "suspected a concussion because of the injury on her head." He did not treat her, but advised her family physician, Dr. F. S. Suddarth, of her condition. Dr. Suddarth, who had been plaintiff's physician for a number of years, attended her within a few hours after the wreck. He testified that he found "a considerable knot" on the back of her head; that she was suffering from shock and nervousness which in his opinion was caused by a concussion of the brain; that; she remained in bed several weeks under the care of a trained nurse (at his orders), during which time she had such intense headaches that the administration of morphine was necessary; that she complained of dizziness and of the sensation of going backwards; that about a year or year and a half after the bus accident, she commenced having convulsions, which affliction had continued at intervals to the time of trial; and that the front of both her legs, from the knees down, had become very much discolored, and she dragged her right foot when walking. Dr. Suddarth stated that plaintiff was of a nervous temperament and had always been rather frail, but with the exception of her eyes she had been in good physical condition for some time before the accident; that he had never known of her having convulsions prior thereto; and that in his opinion her present condition is the result of concussion of the brain, is permanent, and will shorten her life.
Dr. H. H. Haines, a physician of Clarksburg, examined the plaintiff in April, 1928. He testified that she was then very nervous and unable "to handle her muscles" and that she had symptoms of cerebral concussion, which in his opinion had been caused by '' a blow or injury.''
The plaintiff testified that she received a blow on the back of her head when the bus wrecked. In addition to what her physician had said of her, she stated that since the wreck she had not been able to sleep normally and had been troubled with double vision, the scientific name for which is "diplopia". The evidence of plaintiff's suffering and other afflictions is supported by the testimony of her father, her husband, and the trained nurse. This evidence is not controverted except as to the diplopia.
Plaintiff was examined by Dr. Robert Sattler, an eye specialist of Cincinnati, in 1922, and he found that she had congenital weakness of the eyes. He testified: He examined her in the summer following the accident, and while he found some aggravation of her original trouble did not find diplopia "due to a paralysized muscle." She was also examined by Dr. I, D. Cole, an eye specialist of Clarksburg, West Virginia, in April, 1928. Dr. Cole procured, for purposes of comparison, the results of the examination made by Dr. Sattler in 1922. Dr. Cole states that he found the right eye of the plaintiff worse in 1928 than reported by Dr. Sattler in 1922; that the left eye was about the same; that she made no complaint to him of double vision; and that while she may have suffered at times from that trouble, yet from his examination of the muscles of her eyes, he was certain that she did not have constant diplopia.
The defendant, relying on the evidence of Drs. Sattler and Cole, say that the plaintiff's claim of diplopia is...
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