Emery v. Monongahela West Penn Public Service Co.
| Decision Date | 15 March 1932 |
| Docket Number | 7126. |
| Citation | 163 S.E. 620,111 W.Va. 699 |
| Parties | EMERY v. MONONGAHELA WEST PENN PUBLIC SERVICE CO. |
| Court | West Virginia Supreme Court |
Submitted March 2, 1932.
Syllabus by the Court.
Last clear chance doctrine is qualification of general rule that contributory negligence bars recovery.
"Last clear chance" doctrine is that plaintiff notwithstanding contributory negligence, may nevertheless recover if defendant had, or should have had, knowledge of danger, and by exercise of ordinary care could have avoided injuries.
Last clear chance doctrine implies sufficient interval of time for appreciation of dangerous situation and effective effort to relieve it.
Common-law rule of unanimity in finality of verdict is in force in West Virginia.
Instruction embodying common-law rule of unanimity in finality of verdict, couched in language that does not invite obduracy or disagreement, should be given.
Instruction that juror, if not convinced, should not surrender own convictions simply because differing from those of other jurors, should be given, if offered.
Instruction on burden of proof is not substitute for instruction on rule of unanimity of jury in reaching verdict.
Bill of particulars is no part of declaration, and therefore items contained therein are not admissible in evidence unless there is allegation in declaration warranting introduction.
1."The doctrine of last clear chance is a qualification of the general rule that contributory negligence bars a recovery and the principle of the doctrine is that, although the plaintiff has been negligent in exposing himself to peril and although his negligence may have continued until the accident happened, he may nevertheless recover if the defendant after knowledge of plaintiff's danger, or by the exercise of ordinary care could have known, and having reason to suppose that he (plaintiff) may not save himself could have avoided the injury by the exercise of ordinary care, and failed to do so." The rule "implies a sufficient interval of time for both appreciation of the dangerous situation and effective effort to relieve it." McLeod v. Laundry Co., 106 W.Va. 361, 145 S.E. 756, and Juergens v. Front (W. Va.) 163 S.E. 618, decided March 8, 1932.
2. Unanimity in the finality of a verdict was and is the rule of the common law, and is in force in this state, and a litigant is entitled to an instruction embodying that rule couched in language that does not invite obduracy or disagreement on the part of the jurors. And an instruction telling the jury that, if any member, after hearing and considering all the evidence, receiving instructions, listening to arguments of counsel, and after consulting with his fellow jurors in the jury room, is not convinced as to the verdict to be rendered, it is his duty not to surrender his own convictions simply because other jurors are of a different opinion, should be given, if offered, provided there is no other like instruction given.
3. An instruction telling the jury that the burden of proof is on the plaintiff to maintain his case by a preponderance of evidence has no relation to, and is not a substitute for, an instruction on the rule of unanimity of the jury in reaching a verdict.
4. A bill of particulars is no part of the declaration, and evidence of items therein contained is not permissible, unless there is an allegation in the declaration which warrants its introduction.
Error to Circuit Court, Marion County.
Action by Louis Emery against the Monongahela West Penn Public Service Company. To review a judgment in favor of the plaintiff, the defendant brings error.
Judgment reversed, verdict set aside, and a new trial awarded.
James A. Meredith, Ernest R. Bell, and K. C. Moore, all of Fairmont, for plaintiff in error.
L. C. Musgrave and J. Worley Powell, both of Fairmont, for defendant in error.
Defendant prosecutes error to a $1,500 verdict and judgment thereon awarded as damages for injuries sustained by him when defendant's street car struck an automobile truck driven by plaintiff.
The collision occurred at a point in the city of Fairmont where Murray avenue intersects (but does not cross) Pennsylvania avenue, about noon on January 18, 1930. The weather was cloudy; the streets were icy, and there were two inches of snow on the ground at 8 o'clock that morning, and a little snow fell between 8:30 and 9:30; the wind was blowing and the temperature of 20 degrees, registered at 8 o'clock, remained constant during the day. Murray avenue, as it ascends from Pennsylvania avenue, has a grade of 13.6 per cent.; its pavement is 20 feet wide; there is no curbing on either side of the pavement, but dirt banks about 5 feet high ascend from each side thereof. A traffic sign marked "Thru Street Stop" stood on Murray avenue at the intersection where the collision occurred. Defendant's car tracks paralleled Pennsylvania avenue, but ran along the eastern side thereof, outside of the paved portion of the avenue, within 6 or 8 feet of the point at which Murray avenue began, and on a grade of 7 or 8 per cent. A concrete wall, about 10 feet high, on Pennsylvania avenue, and a dirt bank thereon obstructed the view of traffic on Murray avenue from the motorman on defendant's car, which was described as a "one-man" car, 45 feet long and weighing about 54,000 pounds.
Plaintiff had, a few minutes before the accident occurred, driven his Dodge truck, loaded with coal, over the crossing at the intersection of Pennsylvania avenue and Murray avenue and had ascended Murray avenue for the purpose of delivering the coal. His truck was equipped with chains and his brakes were in good condition. Having delivered the coal, he attempted to return by way of Murray avenue; and, because his truck "will go tolerable fast in low gear," he used his emergency brake, and, when about 40 or 50 feet away from the point where Murray avenue intersects with Pennsylvania avenue, his truck began to skid, and he released his brake and applied gas. This method was repeated each time his car would skid until he got within 4 or 5 feet of the nearer rail of defendant's tracks when he saw the street car 75 or 80 feet away. Plaintiff relates that, as he came down Murray avenue, he continued to think of the crossing and tried, but could not run into the dirt bank; that he was driving at a rate of between four and six miles per hour when he started down Murray avenue, and that when he reached the intersection his speed had decreased; that when he saw the street car he put his car in reverse, but "the wheels just spinned; didn't take hold," and the car continued to move forward; and that he cut his front wheels to the left or in the opposite direction from which the street car was coming and opened the door of the truck to alight when the street car struck his truck, inflicting a broken ankle and other injuries to plaintiff.
The motorman testified that, just before the collision, his car was on descending grade, and for that reason he had turned off the power and was running the car at a speed of from twelve to fifteen miles per hour; that, when he first saw the truck, it was "right up on" the near rail and the street car 50 or 75 feet away; that he could not have seen the truck sooner; and that, seeing it, he immediately applied his emergency brake and sand and blew the whistle. Other witnesses, seated in various positions in the car, observed the truck when it was 50 or 75 feet from their respective seats; and one of those witnesses (Lore Yager), who sat about 3 feet from the motorman, and who first observed the truck when it was 3 or 4 feet from the nearer rail, "felt the jar in the motion of the car" about 30 or 35 feet from the truck; while another witness (for defendant), sitting near the motorman, testified that the truck was across the track and had stopped on the crossing; that he observed the motorman "put the air on," but "didn't seem to take hold" quickly. Layman, a witness for plaintiff, who said that he was seated with John Hibbs about the center of the street car, observed the truck near the rail when the truck was 50 to 75 feet away from where he was seated; and Hibbs (as plaintiff's witness), although not certain whether the motorman was then talking with passengers or making change, stated that he (motorman) was not looking ahead and could have seen the truck "around 75 to 100 feet" away. Alex Tchinski, a witness for defendant, who stood on the left of the vestibule near the motorman, stated he first saw the truck 40 or 50 feet from the crossing, and that, when the truck was about 5 feet from the track, the street car was 15 or 20 feet away. Witnesses for both plaintiff and defendant testify that when they first saw the truck (50 to 75 feet away), they remarked that the truck would be "hit," although they were not asked on what facts their remarks were predicated.
After the accident, the truck was in a ditch near a pole situate about 16 1/2 feet from the crossing. Just where the street car stopped with reference to the front end of the truck is not clear, a witness for plaintiff testifying that the front end of the truck lacked less than a foot of reaching the pole and that the rear end of the car was 15 feet past the front end of the truck (making the distance in which the street car stopped between 125 and 150 feet) whereas the motorman says he stopped within 85 feet. There is likewise a conflict in the evidence of opinion and of fact on whether the trolley rails were wet or dry when the accident happened, and a consequential variance on the distance in which the car should have been stopped, the variance being from 10 or 12 feet to 225 feet.
Plaintiff's right of recovery is predicated upon the doctrine of last clear...
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