Chaney v. Moore

Decision Date11 May 1926
Docket Number(No. 5538)
PartiesJ. M. Chaney, Administrator, v. Mrs. M. E. Moore
CourtWest Virginia Supreme Court

1. Instructions Instructions to Jury Should State Law Ap-plicable to Particular Facts Which Evidence in Case Tends to Prove and With Reference Thereto*, and Not Mere Abstract Propositions of Law, and if Not so Stated, and for That Reason Instructions Are Misleading, the Error May Constitute Grounds for Reversal.

Instructions to the jury should state the law applicable to the particular facts which the evidence in the case tends to prove and with reference thereto, and not mere abstract propositions of law, and if not so stated, and for that reason the instructions are misleading, the error may constitute grounds for reversal, (p. 626.)

2. Same! Though a Proposition of Law Applicable to Facts Which Evidence Tends to Prone May be Given to Jury in One Instruction, Court Should Not Deny Party Relying Thereon Another Instruction Covering Same Subject But Which is Intended and Does Define With Greater Particularity and Clearness Rights of Party Depending Thereon,

Though a proposition of law applicable to the facts which the evidence tends to prove may be given to the jury in one instruction, the court should not deny the party relying thereon another instruction covering the same subject but which is intended to and does define with greater particularity and clearness the rights of the party depending thereon, (p. 626.)

3. Automobile Operator of Automobile on Public Road Bound to Observe Extraordinary Conditions Existing Along the Way, When Warned by Sign and Otherwise That Workmen Are Engaged Ahead Repairing Road, He Must Sound Horn, Approach and Attempt to Pass Place Where Workmen Are so Engaged at Such Rate of Speed and at All Times Have Car Under Such Control as to Avoid Injury to Workmen so Engaged, if He Would Avoid Liability.

The operator of an automobile on the public road is bound to observe extraordinary conditions existing along the way, and when warned by a sign and otherwise that workmen are engaged ahead in repairing the road, he must sound his horn and approach and attempt to pass the place where the workmen are so employed at such rate of speed and at all times have his car under such control as to avoid injuring a workman so engaged, if he would avoid liability for injuries inflicted by his failure to observe such due care. (p. 630.)

4 Same In Cases of Such Extraordinary Hazard and Danger Rule of Reasonable Care Applicable in Other Cases Incomplete; Greater Degree of Care Should be Enforced, and Workman so at Work on Public Road Has Right to Rely on That Degree of Care by Operators With Contributory Negligence for Failure to Observe Negligence of Defendant in approaching him.

In cases of such extraordinary hazard and danger the rule of reasonable care applicable in other cases is incomplete: a greater degree of care should be enforced, and a workman so at work on the public road has the right to rely on that degree of care by operators thereon which will protect him from injury, and he will not be charged with contributory negligence for failure to observe the negligence of the defendant in approaching him. (p. 628.)

5. Same Driver of Automobile so Negligently Operating Car Upon Public Road Will Not be Excused from Liability for His Negligence in Approaching Workmen Engaged in Road Repairing if His Negligence Has Created Emergency Corkfronting Him.

Nor will the driver of an automobile so negligently operating his car upon the public road be excused from liability for his negligence in approaching workmen engaged in repairing the road because of a sudden emergency if his negligent approach has created the emergency confronting him. (p. 631.)

Hatcher, Judge, absent.

Error to Circuit Court, Kanawha County.

Action by J. M. Chaney, Administrator, against Mrs. M. E. Moore. Judgment for plaintiff". Defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

A. J. Barnhart and B. J. Pettigrew, for plaintiff in error.

Brown, Jackson & Knight, and Thos. B. Jackson, for defendant in error.

Miller, Judge:

This is an action for the alleged wrongful death of plaintiff's decedent, a boy about fourteen years of age, the result of the alleged negligence of defendant in the operation of her automobile on the James River and Kanawha turnpike, east of the town of Hurricane, in Putnam County, near the place where the deceased, with other workmen, was engaged in removing a slide and dumping the earth over the shoulder of the road about a thousand feet west of the slide, and in repairing the road.

On the trial, upon a plea of not guilty, the jury found for the defendant, and the case is now before us upon a writ of error awarded the plaintiff for the alleged errors of the trial court committed on the trial before the jury.

The facts disclosed by the evidence are that the deceased, Morris Chapman, was substituting for another boy regularly employed by the foreman of the state road commission, then engaged in removing the slide and dumping the dirt over the bank or shoulder of the road, as already stated. Four or five men were employed in the work. At the time of the accident, Thompson, the foreman, had driven a Ford truck with a load of dirt from the place of the slide to the place of the dump, and deceased and another workman, Martin, had ridden along on the truck, Martin on the right side, and deceased on the left or south side. The truck had arrived at a point nearly opposite the dumping place, and Thompson was waiting for a convenient opportunity in the traffic to back up across the road to dump his load. Martin had alighted and gone across the road, and was standing there ready to assist in directing Thompson, and watching the truck and the traffic, and to block the wheels. Chapman followed after him The left wheels of the truck, according to the testimony of Thompson and others, were two or two and a half feet, or half the width of the truck, over on the hard surface of the road, the right wheels resting on the north shoulder thereof. The hard surface of the road at this point was from sixteen to seventeen feet wide, with shoulders on each side; and Thompson says that there was practically room enough between his truck and the edge of the hard surface on the opposite side for two cars to pass. Thompson swears that Chapman did not leap from the truck in front of the defendant's car, as she and her husband, riding with her, said, but that he stepped from the truck and was in the act of walking across to the opposite side of the road when run over by defendant's car and killed. Martin did not see Chapman get off the truck, but did observe him walking across the road before he was struck, and says that he lacked but a few steps of being across before he was struck, going over to assist in unloading the truck, and that he saw the car just before it struck the deceased. He could not say what the rate of speed was, but his best judgment was that the car was going about 50 to 60 miles per hour. The marks on the road, measured by Thompson after the accident, showed that the car skidded about 90 feet, and the skid marks showed the brakes had been applied 15 to 17 feet east of the point where the car first hit deceased. The evidence leaves no room for doubt that when struck deceased was about on the south side of the hard surface, where the glass out of the left headlight was found, and along which the body was dragged under the left wheels for a distance of from fifty to seventy feet, according to the witnesses on both sides of the case. As measured by Thompson the skid marks made by the defendant's right wheels were about six feet from the left side of the truck.

Just east of the slide the evidence shows there was a danger sign in red letters placed on the shoulder near the hard surface of the road, reading substantially as follows: "Danger. Drive Carefully. Men Working Ahead. Road Under Repairs." Mrs. Moore says she saw and heeded this warning by slowing down her car, but admits a speed of from twenty to twenty-five miles per hour when she struck and killed Chapman. She says that according to her best recollection, she sounded her horn before reaching the truck. Thompson and others present swear that they heard no horn blown. Thompson on the truck says he could see back a distance of from 1, 000 to 1, 200 feet, but saw no car approaching as he made ready to back his truck to make the dump. He says, it is true, that he was looking back over his right shoulder, which did not give him a clear view of the whole distance between the slide and the dumping place, but he heard no horn and saw no machine approaching. Martin, who had gotten across the road, and was there, neither saw nor heard defendant's car until just before it struck Chapman. Some expert evidence was introduced by plaintiff with reference to some experience tables tending to show that a car of the character of defendant's, and even of greater weight, traveling at the rate of twenty-five miles per hour, could be stopped within 15 to 18 feet by simply applying the foot brake, and from 3 to 4 feet less by applying the emergency brake also, or within 10 to 12 feet. All these uncontroverted facts seem to indicate clearly a high rate of speed, too high entirely for safety under the circumstances, and in the face of the warning given, and from which the jury were not justified in excusing defendant from negligence. The circumstances were all extraordinary, not of the ordinary kind attending travelers on the public highway, and called for a high degree of care on the part of defendant, as we shall endeavor to show in considering the instructions given and refused, soon to follow

The first point of error assigned and relied on for reversal is the striking out of a part of the testimony of plaintiff's witness Kinder. Kinder was one of the workmen along with Thompson, Martin and Chapman,...

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