Colebank v. Standard Garage Co.
| Decision Date | 22 December 1914 |
| Parties | COLEBANK v. STANDARD GARAGE CO. |
| Court | West Virginia Supreme Court |
Submitted November 24, 1914.
Rehearing Denied April 20, 1915.
Syllabus by the Court.
In an action wherein the issue is whether defendant negligently injured plaintiff by driving an automobile on him in a public highway, proof that the place where the injury was inflicted was a street opened to the public and used for travel by the public generally, is sufficient. Acceptance by the public authorities need not be shown.
On the trial of an issue whether the driving of an automobile was negligent, it is improper to admit in evidence the opinions of witnesses that the speed was unreasonable.
Error in the admission of testimony, to which no objection was made and no exception saved below, will not avail on appeal, but will be treated as waived.
Error to Circuit Court, Marion County.
Action by Malinda B. Colebank against the Standard Garage Company. Judgment for plaintiff, and defendant brings error. Reversed and new trial awarded.
Geo. M Alexander, Chas. Powell, and A. J. Colborn, all of Fairmont for plaintiff in error.
Harry Shaw, of Fairmont, for defendant in error.
While walking in a street of a new addition to the city of Fairmont, plaintiff was struck by an automobile belonging to the defendant company, operated by a chauffeur in the ordinary line of defendant's business. She was severely but not permanently injured. In this action against the garage company, upon a declaration stating a good cause of action, she has been awarded damages for the injury. From the judgment defendant brings error.
The street where plaintiff was walking when injured was paved only in the middle of the roadway. One side of the paved portion was occupied by a street car track. There were no sidewalks. Plaintiff, in going from her home to the house of a relative, was pursuing her way along this street, walking on the car track. Upon the approach of a street car, she started to cross to the opposite side of the street and was struck by the automobile.
Plaintiff says the driver of the automobile was negligent. Defendant says plaintiff herself was negligent. Under the evidence in the case, which it will serve no good purpose to detail, the question whether there was negligence warranting recovery or contributory negligence barring recovery was for the jury to settle, in the light of proper instructions.
The declaration says that plaintiff was injured on a public highway, but defendant submits that the place where plaintiff was injured, was not proved to be such--that no acceptance of the street by the public authorities was shown. Liability for the negligent act charged, would be the same though it did not take place on a public highway. Plaintiff however, describing in her pleading how the injury came to her, named the place where it happened. And for the purposes of a case like this one, we think she sufficiently proved the averment as to the place. It appears from the evidence that the street on which she was injured, had been dedicated to the public, and that the public had ever since used it for travel. It was laid off as a street in the new addition, paved as such, and used as such for travel by the public generally. For this case, what more should plaintiff show? It is not a case to charge the public authorities for liability growing out of a defective street or road. In cases of that kind, of course it must be proved that the public authorities have assumed control of the highway--accepted it, and thereby assumed responsibility in regard to it. Plaintiff has shown that the street is what she averred it to be as pertinent to the statement of her case--a public highway in the sense that it is one used generally by the public for travel. As to her rights or the rights of defendant in this case, why is it important or material to show that the public authorities actually accepted control of the street? It is neither important nor material to the issue here involved. As far as plaintiff and defendant were concerned the street was a public one, and both were using it as such. As to the public authorities it may not have been such. Hast v. Railroad Co., 52 W.Va. 397, 44 S.E. 155; Ray v. Railway Co., 57 W.Va. 333, 50 S.E. 413.
Witnesses were asked to give their opinions whether the speed of...
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