Divita v. Atlantic Trucking Co.
| Decision Date | 12 November 1946 |
| Docket Number | 9827. |
| Citation | 40 S.E.2d 324,129 W.Va. 267 |
| Parties | DIVITA v. ATLANTIC TRUCKING CO. |
| Court | West Virginia Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. Notwithstanding that Code, 17-19-9, excepts from the provisions thereof a motor vehicle parked on a public road or highway within the corporate limits of a municipality, the operator of such vehicle must exercise due and reasonable care, dependent on circumstances, in warning other operators of the presence of such vehicle on the highway.
2. Code, 17-8-15, and Chapter 62, Acts of the Legislature 1943 read together, require that motor vehicles capable of speed in excess of fifteen miles per hour be equipped with front lamps of sufficient power to render a substantial object clearly discernible on a level road at least two hundred feet directly ahead, but those statutes must be applied in the light of the physical conditions at and near the time and place of the accident, including lateral curvature of the road and visibility obscured or hindered by fog or other impediment to sight
3. Negligence of the operator of a motor vehicle employed by plaintiff, occurring at a time when the vehicle was being operated in the business of plaintiff, who was present and tacitly approving the manner in which said vehicle was operated, is imputed to plaintiff.
4. The operation of a motor vehicle at night, when visibility is obscured by mist and other weather conditions, at such rate of speed that the operator thereof could not stop or control the same within the range of his vision ahead, as a matter of law constitutes negligence proximately contributing to an injury resulting from a collision with another vehicle stopped on the right side of the paved portion of the road.
Mahan, White, Higgins & Laird, of Fayetteville, for plaintiff in error.
Thompson & Vickers, of Montgomery, for defendant in error.
This action was instituted by Benny Divita to recover damages for personal injuries resulting from a highway collision between an automobile owned by plaintiff and driven by his employee, in which he was riding and a motor truck owned by defendant, Atlantic Trucking Company. To a judgment of the Circuit Court of Fayette County, entered on a jury verdict in favor of plaintiff in the amount of thirty-five hundred dollars, defendant, Atlantic Trucking Company prosecutes this writ of error.
From the evidence adduced before the trial court, the accident, resulting in plaintiff's injuries, occurred as follows:
Plaintiff was the owner of a group of taxis which he managed and operated in and around the City of Montgomery under the firm name of Divita Taxi Company. Reuben Griffith was employed by plaintiff as a taxi driver and was on duty as such on the night of November 12, 1943. In accordance with plaintiff's agreement about two a. m. of that night, Griffith went to a cafe in Montgomery to pick up some lunch boxes for delivery to employees of Electro-Metallurgical Company at its plant located a few miles east of Montgomery on U.S. Route No. 60. At the same time the taxi was engaged by three waitresses employed at the same cafe to transport them to their respective homes located along the route the taxi would follow in delivering the lunch boxes.
Before leaving Montgomery, Griffith stopped by plaintiff's offices where plaintiff and Lonnie Legg, another of plaintiff's employees, entered the rear seat of the taxi, where one of the waitresses was seated, the other two waitresses being seated in the front seat of the taxi. Thereupon Griffith drove the taxi east along U.S. Route No. 60 a three-lane highway, to the Town of Smithers, where the taxi collided with the rear end of defendant's truck, which was stopped on the southern paved portion of the highway. As a result of the collision plaintiff was seriously and permanently injured.
Defendant's driver in explaining his position at the time of the collision, stated that a few minutes earlier, while he had been travelling east along Route No. 60, his truck and another truck, travelling in the opposite direction, had collided by slightly scraping the sides of the two vehicles. He had immediately stopped his truck on the right side of the paved portion of the road, and walked back to the other truck so that he and the driver of the other truck could exchange information relative to filing reports of the accident. After a few minutes defendant's driver returned to his truck, and, while preparing to start the engine of his vehicle, the same was struck by plaintiff's taxi from the rear.
There is a dispute in the evidence as to whether the tail lights of defendant's truck were burning at the time of the accident, but the verdict of the jury in favor of plaintiff resolves that question and we therefore assume that the tail lights were not burning. Flares, or other similar devices warning motorists that the truck was parked on the paved portion of the highway, were not used. From the physical situation, as described by uncontradicted testimony, it is clear that there was ample room on the berm on defendant's driver's right side of the road to have parked his truck clear of the paved portion of the highway.
Although there is evidence tending to show that en route from Montgomery to the scene of the accident, Griffith operated the taxi at speeds varying from thirty-five miles an hour to sixty-five miles an hour, it does appear that prior to the accident, he had reduced his speed to somewhere between twenty and twenty-five miles an hour, at which rate of speed he was driving at the time of the collision.
Furthermore, there is evidence, disputed by plaintiff, tending to show that Griffith's attention was being attracted by one of two causes, namely, that he was turning his head from the road while engaged in an argument with plaintiff, or that he was attempting to fondle the person of one of the waitresses seated next to him. The verdict, however, resolves these disputes in favor of plaintiff, and, accordingly, they are not here considered.
There is also a sharp conflict in the evidence as to the weather conditions existing at the time of the accident. Plaintiff, through his own testimony, as well as through the testimony of Griffith and others, shows that the night was extremely dark and that a heavy mist had formed. Plaintiff's evidence shows that it was so dark and misty that the lights of the taxi had to be kept on 'low beam' and that at no time could they see more than twenty-five feet ahead of them. At the scene of the accident, plaintiff and Griffith, both testified that they were unable to see defendant's truck until they were within twenty or twenty-five feet of it. Again, because of the verdict of the jury, we consider only the weather conditions as testified to by plaintiff and his witnesses, and disregard evidence offered by defendant tending to dispute these weather conditions.
When Griffith saw defendant's truck, he was travelling about twenty to twenty-five miles an hour, was within twenty or twenty-five feet of it, and both Griffith and plaintiff state it was too late to avoid or prevent the collision.
The foregoing are in substance the material facts proved at the trial. As indicated above, we are considering only such facts as are not disputed, and as to those in dispute we consider only the versions thereof and the inferences arising therefrom which are most favorable to plaintiff, in whose favor the jury rendered its verdict. Adkins v. Raleigh Transit Co., 127 W.Va. 131, 31 S.E.2d 775.
In prosecuting its writ of error here, defendant offers ten assignments of error, which, for the purposes of discussion herein, can be consolidated: (1) The trial court erred in refusing to give certain instructions, being instructions Nos. 3, 16 and 23, offered by defendant; and (2) the trial court erred in refusing to hold that plaintiff, as a matter of law, was guilty of negligence proximately contributing to his injury.
Defendant's instruction No. 3 is clearly repetitious of portions of its instruction No. 2, tendered by it and given. Therefore, the trial court's refusal to give this instruction does not constitute error.
Defendant's instruction No. 16, as offered by defendant and refused by the trial court, reads as follows: 'The court further instructs the jury that since the place of the accident involved in this case was within the corporate limits of a municipal corporation, Merrill Akers, the driver of the Atlantic Trucking Company's vehicle, was not required by law upon stopping the same either to dim or leave burning his lights.'
Counsel for defendant cites no pertinent authority for this proposition other than Code, 17-19-9. That section constitutes a statutory regulation of the highways, is penal in its nature, and prescribes: 'Any person who shall park, except with its lights dimmed, any automobile or other motor vehicle on any public road or highway outside the limits of any incorporated town or city, between thirty minutes after sundown and thirty minutes before sunrise, shall be guilty of obstructing such road or highway, and, upon conviction thereof, shall be fined not less than ten nor more than fifty dollars, or imprisoned in the county jail not less than ten nor more than thirty days.' (Emphasis supplied.) Defendant relies upon the emphasized words and the admitted fact that the accident occurred within an incorporated town, as excepting it from any legal duty 'to dim or leave burning the lights'. We do not agree with that contention.
While unquestionably defendant's driver, under the circumstances described above, would not have been subject to a criminal prosecution under Code, 17-19-9, because of the exception therein, nevertheless, that exception...
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