Fielder v. Serv. Cab Co

• Court: Supreme Court of West Virginia
• Citation: 11 S.E.2d 115
• Decision Date: 08 October 1940
• Docket Number: No. 9071.,9071.
• Parties: FIELDER. v. SERVICE CAB CO.

11 S.E.2d 115

FIELDER.
v.
SERVICE CAB CO.

No. 9071.

Supreme Court of Appeals of West Virginia.

Oct. 8, 1940.

[11 S.E.2d 115]Syllabus by the Court.

1. Before directing a verdict in a defendant's favor, every reasonable and legitimate Inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.

2. The question of the credibility of witnesses and the weight of their testimony is peculiarly for the jury.

3. A person using a public road has a right to assume that those likewise using the road will use due care.

4. "A negligent plaintiff, oblivious of impending danger, may nevertheless recover for injuries, where the defendant knew of the plaintiff's situation, and, under the circumstances, in the exercise of reasonable care, should have realized the plaintiff's peril, and, on such realization, could have avoided the injury." Pt. 4, Syl., Meyn v. Dulaney-Miller Auto Co., 118 W.Va. 545, 101 S.E. 558.

Error to Circuit Court, Cabell County.

Action by Hazel M. Fielder, administratrix of the estate of Edward Fielder, deceased, against the Service Cab Company for death of deceased who while riding bicycle was struck by defendant's taxicab. To review a judgment upon a directed verdict for defendant, plaintiff brings error.

Judgment reversed, verdict set aside and new trial awarded.

Lilly & Lilly, of Charleston, for plaintiff in error.

John E. Jenkins and W. H. Norton, both of Huntington, for defendant in error.

[11 S.E.2d 116]

RILEY, President.

Hazel M. Fielder, administratrix of the estate of Edward Fielder, deceased who instituted this action against the defendant, Service Cab Company, a corporation, to recover damages for the alleged wrongful death of her decedent, prosecutes error to a judgment in defendant's favor based upon a verdict directed at the close of plaintiff's evidence in chief.

The declaration alleges several acts of negligence: that defendant did not drive and operate its taxicab in a reasonable, careful and lawful manner, and at a safe, legal and proper rate of speed; that defendant did not keep a proper lookout for persons and vehicles; and that defendant failed to keep its taxicab under control.

To the ruling of the trial court in directing the verdict, plaintiff assigns two grounds of error: (1) defendant was guilty of negligence which was the proximate cause of decedent's death and decedent had committed no act of contributory negligence; and (2) if both decedent and defendant had been guilty of negligence contributing proximately to the fatality, plaintiff nevertheless is entitled to recover under the last clear chance doctrine.

Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence. Hambrick v. Spalding, 116 W.Va. 235, 179 S.E. 807. This rule ex necessitate should guide us in stating the facts and inferences upon which this opinion is based.

The accident occurred about five o'clock in the afternoon of August 2, 1939, at the junction of Miller Road with route 52. After topping the hill on the outskirts of Huntington in traveling toward Wayne, route 52 makes a steep descent. Several hundred feet from the top of the hill, it curves to the right, and thence in a substantially straight line and a southerly direction to the bottom of the hill. Miller Road, a dirt road, joins the highway from the east, by a very sharp, or hairpin, turn, at a point on this descent approximately five or six hundred feet below the curve. This road parallels route 52 for some distance north of the junction as it comes up from a lower level to the junction point. Route 52 has a concrete pavement twenty feet wide, and a level berm twelve feet wide on each side.

Decedent, a youth past seventeen, was riding on a bicycle down the grade, contemplating turning off into Miller Road in the direction of a boy scouts' camp. Defendant's taxicab, occupied by a driver and two passengers, was also traveling south and approaching the intersection. As it reached the end of the curve, the passengers saw decedent riding his bicycle slowly near and toward the intersection. About the center of this intersection and the east edge of the paved portion of route 52 the taxicab collided with decedent and fatally injured him.

At the time the taxicab was proceeding down the hill in decedent's direction, it was going at a speed of not less than thirty-eight miles an hour. Two state troopers, who had investigated the scene and interviewed the driver, testified that the driver had admitted a speed of thirty-eight or forty miles an hour. Norvell and James Maynard, passengers in the car, testified it was going at thirty-eight or more miles an hour; in fact, the latter ventured an opinion that when the collision occurred a speed of forty-five miles an hour had been attained. The Maynards testified that as the taxicab came out of the curve, decedent was seen riding slowly on his bicycle near the intersection. Norvell said that when the taxicab was about two or three hundred feet from the intersection, decedent made a more or less gradual turn toward the left in the direction of Miller Road, and that about ten or fifteen feet from the point at which Miller Road led into route 52 decedent started to turn. James Maynard said that the taxicab was about two hundred feet from decedent when he first started to turn to the left; that the taxicab driver applied his brakes when the cab was fifty or seventy feet behind decedent; that the left wheels of the taxi-cab were leaving the pavement on the left when decedent was hit; and that the taxi-cab was not very fa: behind decedent (fifty or seventy-five feet when decedent swung out. As decedent was seen to turn his bicycle to the left, he gave no signal, did not turn toward the left, and evidently was oblivious of the approaching...