Burdette v. Henson
| Decision Date | 18 March 1924 |
| Citation | 96 W.Va. 31 |
| Parties | Charles Burdette v. Joseph Henson |
| Court | West Virginia Supreme Court |
1. Master and Servant. Declaration Charging Negligence of
Servant Acting Within Scope of Authority Held Sufficient on Demurrer.
A declaration which alleges that defendant's servant acting within the scope of his authority did the acts of negligence complained of, and that by reason of such negligent acts of defendant the plaintiff sustained the damages claimed, without directly alleging that defendant did such acts, is sufficient on demurrer. (p. 32).
2. Municipal Corporations. 'Statutory Right of Way of Vehicle
Approaching Intersection Held Not to Dispense With Use of Reasonable Care.
"Where the statute gives right of way to a driver approaching an intersecting highway from the right over vehicles ap proaching from the left, he is not thereby relieved of the duty to use reasonable care to avoid collision with such vehicles approaching from the left. (p. 35).
3. Same. Driver Approaching Intersection From Left May Assume Vehicle Approaching on His Bight Will Use Ordinary Care.
And the driver approaching from the left is not required to stop and give way to a vehicle in the distance coming up on his right, where he has no reason to anticipate that he can not cross the intersection in safety, but may assume that the other will exercise due care in approaching and crossing the intersection, (p. 36).
Error to Circuit Court, Kanawha County. Action by Charles Burdette against Joseph Henson. Judgment for plaintiff, and defendant brings error.
Affirmed.
Claude L. Smith, for plaintiff in error.
Defendant in this action has prosecuted this writ of error to a judgment against him for the sum of $300.00. The errors assigned are: That the declaration is not sufficient; that the evidence does not sustain the verdict; and that the trial court erred in refusing to give to the jury certain instructions offered by defendant.
The declaration alleges that, as plaintiff was traveling in his automobile along one of the streets of the city of Charleston, at a street crossing, an agent and employee of defendant, acting within the scope of his authority, who was driving defendant's motor truck at an excessive and dangerous rate of speed, carelessly, negligently, wrongfully, recklessly and unlawfully ran defendant's said truck upon and against said automobile of plaintiff, and upon and against the body of plaintiff with great force and violence, injuring and damaging plaintiff's said automobile, and greatly injuring plaintiff about his head, body and limbs, causing him to suffer great physical pain and mental anguish, and to lay out and expend a large sum of money in and about endeavoring to be cured of his said hurts so caused by the reckless and negligent act of defendant as aforesaid; and plaintiff says that by reason of said reckless and negligent acts of defendant, plaintiff's automobile was injured and damaged to the amount of one thousand dollars, and by reason of said hurts, wounds and bruises he was damaged ir. the amount of one thousand dollars.
It is said that the declaration does not allege that the defendant committed the acts complained of, and does not aver ownership of the truck in defendant. But, it is alleged that the servant, acting within the scope of his authority, while driving defendant's truck, negligently ran it upon plaintiff's automobile, and by reason of the reckless and negligent act of defendant, plaintiff sustained the injuries complained of. The master is liable for the acts of his servant done within the course of the latter's employment. This is a rule of law, and not a fact to be pleaded. All the facts necessary to render the defendant in this case liable for the acts of his servant are alleged in the declaration. The facts constituting the relationship of master and servant are alleged, and the wrongful acts of the servant are set out.
Plaintiff testified that he was driving his automobile southward on Glenwood Avenue, and that when he came to the intersection of Main Street, which crosses Glenwood Avenue at right angles, he looked westward, to the right, and saw defendant's truck coming up Main Street, a distance of one hundred yards from the intersection when he started to cross Main Street: that the truck was traveling, in his opinion, 25 or 30 miles per hour; that he thought he had plenty of time to cross the street, 30 feet wide from curb to curb, and would have had time to get across, if defendant's driver had not been coming at an excessive rate of speed; that he did start to cross, but when just beyond the center of the street, he saw that the truck would strike his ear, and in order to avoid it he increased his speed and turned to the left, but the truck struck the rear end of his automobile, turning it around and driving it 39 feet up Main Street; that the truck then turned to the right and ran for a distance of 70 feet on the sidewalk before the driver regained control and ran it back into the street. Plaintiff says he was driving about six or seven miles per hour. A passenger in plaintiff's car corroborated him in the facts detailed above, except as to minor differences in distances. Both say that defendant's truck was running about thirty miles an hour, and that the driver was looking across the sidewalk at some boys, who were "having some words there." The distance the automobile was thrown, and the distance the truck ran along the sidewalk, are corroborated by other witnesses, who came to the scene of the accident a few minutes later. A lady who was on the sidewalk 12 feet from the point where the accident occurred, testified that the truck was going pretty fast and that plaintiff's car was moving slowly.
Defendant's son, the driver of the truck, says that he was going up Main Street between seven and ten miles an hour ...
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