Cooper v. Teter
| Citation | 123 W.Va. 372 |
| Decision Date | 27 May 1941 |
| Docket Number | (CC 641) |
| Court | Supreme Court of West Virginia |
| Parties | J. S. Cooper, Admr., Etc. v. Estin R. Teter |
Automobiles ■
Code, 17-8-2, and 17-19-9, and sections 22 to 25, both inclusive, of Part ii of Rule 57 of Safety Regulations promulgated by the State Road Commission, relating to the parking of motor vehicles on highways and the care of wrecked motor vehicles thereon, are not controlling in the case of a truck which is being used to retrieve an automobile which has gone off a public highway.
A wrecker truck, while being used to restore a wrecked automobile to the highway, may stand upon the traveled portion of such highway for a reasonable length of time, but must not occupy more thereof than is reasonably necessary, and approaching traffic must be fully warned of the obstruction by lights, flags, guards or some other practical means.
Actionable negligence on the part of a defendant is not shown by a declaration alleging that such defendant placed a wrecker truck on the traveled portion of a highway in the nighttime and set "inadequate" red electric lights an "insufficient" distance toward approaching traffic, and showing further that a volunteer traffic director was warning motorists at an unstated distance, but which does not negative the taking of any other precautions by the defendant.
A declaration which alleges that the defendant negligently obstructed a highway, and that an approaching motor car, after a warning given by a flagman, skidded and killed the flagman, but which does not contain allegations showing that the skidding of the car resulted from the obstruction or the warning, legally shows no casual connection between the alleged negligence of defendant and the flagman's death.
A volunteer traffic director who, as such, was merely standing in his chosen place on a highway, and giving warning by May 1941]
Cooper v. Teter signals to approaching motorists, of an obstruction in the highway, and who was killed by the skidding of a passing automobile, is not exempt from the law of contributory negligence or of the assumption of risk so that these defenses cannot be interposed by the creator of the obstruction in a suit by the personal representative of the person killed, based on the ground that the obstruction was negligent.
Certified from Circuit Court, Randolph County.
Action of trespass on the case by J. S. Cooper, as administrator of the personal estate of Wilbur B. Cooper, deceased, against Estin R. Teter to recover for the death of Wilbur B. Cooper, deceased, as result of injuries sustained when struck by an automobile. The circuit court sustained a demurrer of the defendant to the declaration, and certifies questions of law to the Supreme Court of Appeals.
Affirmed.
Keith Cunningham and E. A. Bowers, for plaintiff. Hyer & Gibson, for defendant.
The Circuit Court of Randolph County certified here the questions of law arising upon the sustaining of a demurrer of the defendant, Estin R. Teter, to the declaration filed against him by J. S. Cooper, as administrator of the personal estate of Wilbur B. Cooper, deceased.
This is an action of trespass on the case to recover for the death of Wilbur B. Cooper, which occurred on U. S. Highway No. 33 on the west side of the Allegheny Mountain in Randolph County, near a point where the defendant had placed on said highway a wrecking truck for the retrievement of an automobile which had gone off the road. The decedent came to the scene from his nearby residence, and while remaining on the road, is alleged to have voluntarily rendered assistance to the defendant by giving warning to approaching motorists. An automobile, descending the mountain from the east, slipped and skidded on the highway and thereby struck him, inflicting the injuries from which he died. The accident occurred between seven and eight o'clock on the evening of January 27, 1940.
The declaration is in two counts, the first undertaking to show a violation of the road and motor vehicle laws and traffic regulations of this state; the second, being based on the alleged negligent conduct of the defendant in obstructing the highway with his wrecking truck.
The demurrer was interposed on the ground that the decedent's death was caused exclusively by the negligence of the driver of the car which struck him; that "the decedent was not using the public highway for the purpose for which it was intended and was not traveling on said public highway"; and that the declaration shows the decedent to have been guilty of contributory negligence, barring the plaintiff's recovery herein.
Before we can determine whether the declaration shows any actionable negligence by which the defendant was rendered liable for the death of the decedent, it is necessary to decide the precise status of the latter as disclosed by the declaration. Each count contains the following statement:
"* * * plaintiff's intestate, who resided near the place where said automobile had gone over the embankment, went to the scene of said accident and, as he had a right to be, was on said highway in a position above said wrecking truck, or up said highway near the right or outer side of the same, from which position he could and did render assistance to defendant, although not employed by him, by giving warning of defendant's said obstruction to said icy, slippery highway."
This does not exhibit the decedent as a traveler on the highway or as a user thereof for the purposes for which it was intended. If the decedent is regarded as merely having come to the scene out of curiosity and as being "on said highway in a position above said wrecking truck", he is at most a mere bystander or onlooker. As such, he was not strictly a pedestrian nor entitled to the full care due a pedestrian. 45 C. J., p. 840; Peters v. Howenstein, 5 Ohio App. 160; Currier v. Dartmouth College, 117 Fed.
May 1941]
Cooper v. Teter 44, 54 C. C. A. 430. If the decedent is to be considered in the aspect of a voluntary assistant to the defendant, the duty of the defendant toward him would not be enhanced. The declaration alleges that he was rendering assistance to the defendant, although not employed by him, but it does not allege that the defendant, either accepted or knew of this assistance. Such a volunteer would stand no higher than a mere onlooker. 45 C. J., p. 840; Richardson v. Babcock Co., 175 Fed. 897, 99 C. C. A. 353; Armour & Co. v. Rose, 183 Ark. 413, 36 S. W. (2d) 70; El Paso Laundry Co. v. Gonzales, (Tex.) 36 S. W. (2d) 793.
There appears to be no statute and no regulation by the State Road Commission directly applicable to the use of a wrecking truck for the retrievement of a motor vehicle which has gone off the road. It is true that the State Road Commission has adopted and promulgated certain rules of the Motor Carrier Safety Rules and Regu- lations issued by the Interstate Commerce Commission, relating to motor vehicles which are stopped, parked or left standing on the highway, and to motor vehicles which are disabled upon the traveled portion of the highway. Part II of Rule 57, sections 22 to 25,...
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Smith v. Penn Line Service, Inc.
...cases cited and relied upon by the plaintiff are different, both as to facts and the law applicable thereto. The case of Cooper v. Teter, 123 W.Va. 372, 15 S.E.2d 152, is not in point. There was no collision of one car with the other and no causal connection between the defendant's parked w......
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Wilson v. Edwards
...or cause injury to persons entitled to travel upon it. Divita v. Atlantic Trucking Company, 129 W.Va. 267, 40 S.E.2d 324; Cooper v. Teter, 123 W.Va. 372, 15 S.E.2d 152. Having stated generally that if the jury believed that the defendant Corbin was guilty of negligence, the instruction was ......
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Ransom v. Otey
...standing on the embankment of the highway when he was injured was entirely unlike that of plaintiff's decedent in Cooper, Admr., v. Teter, 123 W.Va. 372, 15 S.E.2d 152. In that case the plaintiff's decedent, without being requested so to do by the defendant or any other person present on or......
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Dreibelbis v. Bennett
...Hatcher v. Cantrell (1933), 16 Tenn.App. 544, 65 S.W.2d 247; McNair v. Boyette (1972), 282 N.C. 230, 192 S.E.2d 457; Cooper v. Teter (1941), 123 W.Va. 372, 15 S.E.2d 152. 2 Neither these cases nor any other authority discovered in our research justifies the application of a lesser standard ......