Browning v. Monongahela Transp. Co.
| Decision Date | 02 November 1943 |
| Docket Number | 9483. |
| Citation | 27 S.E.2d 481,126 W.Va. 195 |
| Parties | BROWNING v. MONONGAHELA TRANSP. CO. |
| Court | West Virginia Supreme Court |
John B. Wyatt and Haymond Maxwell, both of Clarksburg, for plaintiff in error.
Steptoe & Johnson and Oscar J. Andre, both of Clarksburg, for defendant in error.
The plaintiff, Bertha Browning, instituted her action at law against Monongahela West Penn Public Service Company, and Monongahela Transport Company, both corporations, in the Circuit Court of Harrison County. The action was later dismissed as to the first-named defendant. The case was then tried against the Monongahela Transport Company, resulting in a verdict in favor of plaintiff for $9,000. On motion of the defendant, the trial court set aside this verdict and granted a new trial, and to this action we granted this writ of error. The parties will be referred to as "plaintiff" and "defendant", the positions they occupied in the court below.
The basis of plaintiff's claim may be briefly stated as follows: On August 26, 1940, she boarded a bus operated by defendant. The bus was stopped on a street where there was considerable grade, and at a point where it was ascending the grade. One or more passengers boarded the bus at that point and plaintiff was preparing to leave it. For some reason the brakes did not hold the bus in position, and it began to drift backwards down the grade, and there was apparent danger that it might drift back into the line of traffic, passing along another street intersecting that on which the bus was stationed. At that time plaintiff was in a standing position near a side entrance, holding to an upright iron rod fastened to the floor and ceiling of the bus. It is contended that the bus stopped suddenly and in such a way as to cause plaintiff to lose her balance, and she was thrown against the upright rod, against a seat and into a seat, and it is averred, suffered severe injuries. Her action is based solely on the allegation of her declaration that in these circumstances, the "said operator and driver of said bus and motor vehicle in some mechanical way and manner carelessly, negligently and unlawfully, without warning suddenly brought said bus to a forceful and violent standstill and stop, and from the force thereof the hand-hold of your plaintiff upon said upright was torn loose and her body thrown with force and violence against a nearby seat, from which the body of your plaintiff rebounded against said iron post, and from said iron post the body of your plaintiff again rebounded back into a nearby seat."
Specifically, the evidence of the plaintiff is to the effect that she boarded defendant's bus at the corner of Fourth and Pike Streets, in the City of Clarksburg, and travelled to the corner of Milford Street and Euclid Avenue; that she pulled the stop cord at this intersection, and that the operator stopped the bus after it had turned the corner; that she then started to leave the bus, had reached the side entrance, and had taken hold of the iron rod mentioned above; that at that time the bus started to drift backwards, the bus driver was then engaged in trying to recover a coin which he had dropped to the floor; that she was about four months advanced in pregnancy at that time, and when she saw the bus begin to drift backwards she hesitated as to whether she should jump from the bus or remain thereon; that she looked at the driver, who was still reaching for the coin, and then looked back at the traffic approaching on Milford Street, thinking there would be a crash, and as she looked "the bus jerked me and jerked me into that rod and my left foot slipped and as I was jerked into that rod and backwards I struck my spine in something, and, after I could see, I was sitting in the first seat behind the rod, and I was sitting there and the driver was standing about middle ways of the bus saying 'Oh my, oh my, are you hurt?' was the next I remember." She testified that a young lady by the name of Virginia Stealey boarded the bus about the time of this accident. Miss Stealey testified that she was standing in the bus at the time it began to drift backwards and at the time it was stopped, and that there was what she calls a "jerk" at the time it was stopped, and that she protected herself against it by holding to the rod near the driver's seat. Another witness, Oma Hall, says that she got on the bus on Milford Street, and, in purchasing tickets, gave the driver a quarter, which he dropped on the floor. She says that after the bus stopped at Euclid Avenue, and Miss Stealey got on, she noticed that it . When asked if the bus stopped with a jerk or jar, she said, . The driver, Chester Strother, testified that the bus drifted back six or eight feet, and that when it had drifted two or three feet he applied the brakes "as easy as I could", and when asked, "Did you jerk the bus?" stated, The evidence is that the bus drifted from six to ten feet, and it seems to be conceded that the time which covered the drifting of the bus and the stopping of the same, was about eight seconds, so that the speed of the drifting must have been very slow. It is clear that there was some jar or jolt; that it came suddenly; and that plaintiff was thrown off her balance and probably suffered some injury; but the nature and extent of her injuries are less clear.
The plaintiff left the scene of the accident and went to the home of a Mrs. Wilson, for whom she was doing work. She complained at that time of being sick as the result of her injuries. Two days later she consulted Dr. Post. She had been examined by him about July 20, 1940, and again about a week before the accident, and, except for her pregnancy, was then in a normal condition of health. When she was examined after the accident there were some signs of swelling on the right side of the middle portion of her body, which the physician attributed to flesh bruises and he paid no particular attention to them. She had some fever at that time, which left her in about a month. Her child was born about five months after the accident, and there was a normal birth and no complications. However, some condition which caused a limp and severe pain persisted, and Dr. Post then referred plaintiff to Dr Humphries, an orthopedic surgeon, who made a rather complete examination of plaintiff and took several X-ray pictures. This examination was probably about two months after the birth of her child. Dr. Humphries testifies that he found that she had a tenderness over the posterior portion of the bone called the right ilium, and in the right iliac joint, and also over the right lumbar sacrum joint, where it joins on the sacrum. He uses much language to explain the technical maladjustments of the bones, which he says could have caused the pain from which plaintiff claimed to be suffering. He states, in effect, that these troubles might be relieved through surgery. Dr. Post was of the opinion that plaintiff's condition was of traumatic origin, but Dr. Humphries states, "It is impossible to definitely state from traumatic origin", but that from the history of the case, "I think it is". The defendant introduced Dr. Sloan, who examined plaintiff on October 3, 1941, and who testifies to finding certain maladjustments of the bones in the region of the spine and sacrum, which he attributes to the general condition which exists at birth, or from natural formations of the body. He definitely states that the condition he found "was unquestionably a congenital malformation or condition resulting in the developing of the bone and not as the result of an injury". He further states that he found plaintiff "had distinct evidence of inflammation of the joints between the last vertebra of the lumbar spine and the sacrum, and some evidence of inflammation in the joint between the sacrum and ilium or large pelvic bone"; and also ...
To continue reading
Request your trial