Deputy v. Kimmell.
| Decision Date | 03 February 1914 |
| Citation | 73 W.Va. 595 |
| Court | West Virginia Supreme Court |
| Parties | Deputy v. Kimmell. |
1. Streets and Highways Law of the Road Mutual Bights.
The rights of pedestrians and drivers of automobiles, when using streets or other public highways, are mutual, equal and coordinate, except as varied by the nature of the appliance or mode of travel employed; and as long as each observes the reciprocal rights of the other neither will be liable for any injury his use may cause, (p. 597).
2. Same.
A person using a public highway owes the double duty to avoid danger to himself by another having an equal right to such use, and the infliction of injury upon such other person. Both must exercise that degree of care which a reasonably-prudent man would exercise under the same circumstances. (p. 598).
3. Same Law of Boad Operation of Automobile.
Because of the character of the vehicle and the unusual dangers incident to its use, a greater degree of care is required of the operator of an automobile, while on the public highway, and especially at street crossings, than is required of persons using the ordinary or less dangerous instruments of travel. He should exercise such care in respect to speed, warnings of approach and the management of the car as will enable him to anticipate and avoid collisions which the nature of the machine and the locality may reasonably suggest likely to occur in the absence of such precautions, (p. 598).
4. Same Operation of Automobile Care Bequired Children.
The vigilance and care required of the operator of an automobile vary in respect of persons of different ages or physical conditions. He must increase his exertions in order to avoid danger to children, whom he may see, or, by the exercise of reasonable care, should see, on or near the highway. More than ordinary care is required in such cases, (p. 599).
5. Same Operator of Automobile Care Bequired Obstructed View.
Where a wagon or other vehicle obscures or obstructs his view of a street crossing, when the presence thereon of others may reasonably be anticipated, extra vigilance and caution are required of the auto operator, in order to prevent injury to persons on such crossing, (p.601).
6. Same Injury to Pedestrian Contributory Negligence.
The mere negligent act of one person will not excuse negligent injury to him by another. If, therefore, a person who negligently places himself in a situation of imminent danger is injured by one who by the exercise of reasonable care could have avoided such injury, the negligence of the former will not bar recovery, (p. 603).
7. Same.
A person lawfully in a public highway may rely upon the exercise of reasonable care by drivers of vehicles to avoid injury. Failure to anticipate omission of such care does not render him negligent. A pedestrian is not bound, as a matter of law, to be continuously looking or listening to ascertain if automobiles or other vehicles are approaching, under penalty that if he fails to do so and is injured his own negligence will defeat recovery of damages sustained, (p. 603).
8. Negligence Contributory Negligence Children '' Ordinary Care.''
In determining the question of contributory negligence, the conduct of children should not be judged by the same rules which govern that of adults. Ordinary caution for them is that degree of care and prudence which children of the same age are accustomed to exercise under like circumstances. (p. 603).
9. Same Pleading and Proof.
In order to recover, it is unnecessary for plaintiff to prove literally the acts of negligence averred in the declaration. If the allegations are substantially proved, this is sufficient. Hence, an instruction, in an action of case for personal injury, which tells the jury that it can not find for plaintiff unless it believes from the evidence "that the defendant was negligent in the very manner set out in the declaration," is erroneous, and should be refused. (p. 605).
Error to Circuit Court, Mineral County. Action by Dewey Deputy, an infant, against E. G-. Kimmell. Judgment for plaintiff, and defendant brings error.
Affirmed.
Chas. N. Finnell and Frank C. Reynolds, for plaintiff in error.
R. F. Leedy and W. H. Griffith, for defendant in error.
The injury, damages for which plaintiff seeks recovery by an action of trespass on the case, was inflicted by defendant in the operation of an automobile on the streets of Keyser.
The car collided with plaintiff at a street crossing, and within a few feet of the curb, over which he had just stepped into the street. At that time, he was ten years and six months old. In company with him were two companions, one eleven, the other nine years old. They were interested in the pictures of noted baseball players, contained in a box of candy purchased by one of them at a store near the crossing. These they were examining, as they leisurely approached and entered upon the crossing at the time of the collision.
Defendant drove his car along Piedmont street, and thence to the left over the crossing and into Orchard street. As the car entered on the crossing, it collided with two of the three boys, knocking plaintiff to the pavement, thereby causing the injury.
The trial court entered judgment for plaintiff on the jury's finding on the facts. Hence, the case is here on writ of error.
While defendant admits the collision and its resultant effect, he denies liability on the ground that but for the negligence of the plaintiff the collision would not have occurred. But the question of defendant's negligence, and that of plaintiff, if any, contributing to the injury, were submitted to the determination of the jury; and its findings can not be disturbed, except for good and sufficient cause.
Was defendant negligent? He was lawfully on the public highway. It was open alike to him and to the plaintiff. Their rights thereon were mutual and coordinate. The rights of the one were not superior to the rights of the other. Highways are constructed and maintained, at public expense, for public use by all persons alike, without limitation or restriction, save only that the use must conform to the well established rules and regulations prescribed by law.
That the use of automobiles on the highways for business or recreation is lawful, is no longer open to question. Such use involves only the application of a new appliance and mode of travel, rather than any new legal principle. It does not exclude or seriously interfere with the original modes in which the highways were used, but simply adds another use in furtherance of the general object for which they were dedicated. But new appliances and modes of travel must be exercised with due regard for the rights of others using the highways; "and as long as such care is exercised the owners will not be liable for any injury their use may cause". Berry on Automobiles §115, and numerous cases cited.
So that, in whatever manner or for whatever lawful purpose one uses a public highway, he owes a double duty: (1) to avoid danger to himself by another having the right to such use, and (2) to avoid infliction of an injury upon such other person. Both must exercise such care as reasonably prudent persons would exercise under the same circumstances and conditions, in order to avoid being injured or causing injury. Springs Co. v. Broivn, 165 Ind. 465; Hall v. Compton, 130 Mo. App. 675; 28 Cyc. 27, 29; Berry on Automobiles, §§128, 150, 163, 171, 173; Huddy on Automobiles, §§84, '95, 99, 101; Babbitt on Motor Vehicles, §913.
But what may be due and reasonable care in the use of a highway under some circumstances, may be negligence under others. No inflexible rule applicable alike to all eases has been or can be definitely stated. Each case must be determined upon its own peculiar facts. The degree of care varies also to some extent with the character of the vehicle. There is an obvious difference in that respect between the use and operation of a road-wagon and an automobile. The latter has weight and power, and also greater capacity of speed and agility in its movements. It responds more readily to the will of the operator. Therefore, "the operator must enlarge to a commensurate extent the degree of vigilance and care necessary to avoid injuries which the use of his vehicle has made more imminent". Berry on Automobiles §119. "Mov-I ing quietly as it does, without the noise which accompanies the movements of a street car or other ordinary heavy vehicle, it is necessary that caution should be continuously exercised to avoid collisions with pedestrians unaware of its approach; j The speed should be limited, warnings of approach given, and skill and care in its management so exercised as to anticipate such collisions as the nature of the machine and the locality might suggest as liable to occur in the absence of such precautions". Id., §§124, 154; Huddy on Automobiles, §95.
On this subject the observations of the court in Irwin v. Judge, 81 Conn. 492, are pertinent. ...
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