Chambers v. Princeton Powter Co.

• Decision Date: 24 April 1923
• Docket Number: No. 4725.,4725.
• Citation: 93 W.Va. 598
• Parties: Ira Claude Chambers v. Princeton Powter Company.
• Court: West Virginia Supreme Court

93 W.Va. 598

Ira Claude Chambers

v.Princeton Powter Company.

No. 4725

Supreme Court of Appeals of West Virginia.

Submitted January 30, 1923.

Decided April 24, 1923.

1. Negligence Street Railroads Negligence, and Contributory Negligence for Jury.

Ordinary negligence and contributory negligence are mixed questions of law and fact for the jury's determination. The evidence in this case does not call for an exception > to the general rule. (p. 602).

2. Street Railroads Degree of Care Required.

A street railway company is under a high degree of care while operating cars over its tracks, to keep careful lookout for those using the street, and to employ such means as may be necessary or available to prevent injury to them, (p. 601).

3. Same Rate of Speed Held Negligence Per Sc.

It is negligence per se for a street railway company to operate its cars over the streets of a municipality in the night time at a greater rate of speed than will enable the motorman in charge of the car to stop it within the distance covered by its own lights to avoid collision with other vehicles on the track. (p. 601).

Error to Circuit Court, Mercer County.

Action by Ira Claude Chambers against the Princeton Power Company. Judgment for plaintiff, ami defendant brings error.

Affirmed.

Sanders, Crockett & Fox, for plaintiff in error.

John Kee and John R. Pendleton, for defendant in error.

Litz, Judge:

We are called upon to reverse the judgment of the circuit court of Mercer county, rendered on the verdict of a jury in favor of plaintiff against defendant, for $1250.00 as damages for personal injury sustained by plaintiff, resulting from the collision of defendant's street car with wagon driven by plaintiff.

The defendant owns and operates a street car system in the City of Bluefield, West Virginia, and the adjoining town of Graham, Virginia. Its car line, connecting the two municipalities, occupies the middle portion of the main street of the town of Graham. The injury to the plaintiff occurred on the main street in the outskirts of this town near the corporate limits of Bluefield.

Plaintiff, on the occasion of the injury, September 11th, 1921, was driving a team and wagon along the main street of Graham in the direction of Bluefield about eleven o'clock in the night time. The wagon was laden with boxes, tubs and other bulky freight, on account of wdrich the plaintiff Avas unable, from his sitting position, to see to the rear. At the place of the collision, extending along the right side of the street in the direction plaintiff was going, was an excavation for a seAver line, the dirt from Avhich had been piled near the car tracks, making it necessary for the plaintiff to drive across the tracks from the right to the left side of the street. Plaintiff says that after driving across the tracks he observed an automobile approaching from the front, and realizing there would not be room to pass between it and the car line, turned back on to the tracks; and that being thus compelled to occupy a portion of the tracks by reason of the ditch and dirt on the right and automobile to the left, after proceeding 50 or 75 feet the wagon was struck from the rear by the street car. The impact demolished the wagon, scattered its freight, and hurled plaintiff over the team, across the street against a fence. The collision occurred near the center of a deep sag or depression in the street several hundred feet in length. Evidence in behalf of the plaintiff shows that the incline from this point to the summit in the direction the street car was coming was 300 or 100 feet long, and that the motorman on the car could have seen the wagon at that distance ahead. The motorman, however, claims that it was only about 175 feet from the summit to the point of the collision and that, on account of the curvature of the tracks, he could not have seen the plaintiff by the headlight on the car for more than 100 feet.

The plaintiff, just before crossing the tracks, had passed the street car on its way from Bluefield to the terminus of the car line in Graham, which is about one-half mile from the place of collision. The defendant's cars making the trip from Bluefield to Graham ordinarily return promptly. The street car approached without signal or warning and no light was displayed on plaintiff's wagon. Passengers on the car testify it did not check until after the collision.

The plaintiff, according to testimony in his behalf, sustained many bruises over his body. His back was hurt and one ankle severely injured, the bone thereof being fractured or bruised. He was "laid up" for some days, and his earning capacity permanently reduced.

The defendant's twelve assignments of error involve the rulings of the trial court on instructions to the jury, and are predicated upon the theories:

(a) That the defendant was not guilty of actionable negligence; (b) That the plaintiff was guilty of contributory negligence barring his right of recovery; and,

(c) That the verdict is excessive.

It is argned in denial of negligence on the part of the defendant that the street car was running at an ordinary and moderate rate of speed, and that the motorman's view of the wagon was obstructed, first, by the "bluff" around which the street car line runs and, immediately before the accident, by the light of a passing automobile blinding his vision, so that he could not see the wagon until too close to avoid the collision. The motorman testified he was running about 18 miles per hour. If this was the usual and ordinary rate of speed, and conditions were such by reason of the bluff and blinding light of a passing automobile that he could not see, then it was his duty to slacken speed and use signals until conditions would permit his vision to safeguard his passengers and persons on the track.

" It is negligence to run an electric...