Frampton v. Consolidated Bus Lines, 10234

• Citation: 62 S.E.2d 126,134 W.Va. 815
• Decision Date: 31 October 1950
• Docket Number: No. 10234,10234
• Parties: FRAMPTON, v. CONSOLIDATED BUS LINES, Inc.
• Court: Supreme Court of West Virginia

Page 126

62 S.E.2d 126

134 W.Va. 815

FRAMPTON, v. CONSOLIDATED BUS LINES, Inc.

No. 10234.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1950.

Decided Oct. 31, 1950.

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.' Pt. 1, Syl., Fielder, Adm'x, v. Service Cab Company, 122 W.Va. 522 .

2. 'It does not constitute error to permit a hypothetical question to be answered to which only a general objection is interposed.' Pt. 5, Syl., Parr v. Coca-Cola Bottling Works of Charleston, 121 W.Va. 314 .

3. A plaintiff in an action at law to recover damages for personal injuries may testify as to matters concerning the alleged injuries within witness's personal knowledge, provided the witness does not give expert testimony bearing on the cause, the extent and the permanency of the injuries.

4. 'In an action for damages, resulting from injury by negligence, a variance of the evidence from the declaration, in respect to specification of mere matters of detail, concerning the manner, not the time or place at which, or the instrumentalities by which, the injury was inflicted, is immaterial.' Pt. 5, Syl., Kniceley v. West Virginia Midland Railroad Co., 64 W.Va. 278 .

5. Under Subsection (j), Section 5, Article 5, Chapter 50, Acts of the Legislature, 1937, as amended and reenacted by Acts of the Legislature, 1939, Chapter 86, and as reenacted by Acts of the Legislature, 1947, Chapter 134, the Public Service Commission of West Virginia has the power to promulgate safety rules and regulations applicable to motor carriers, provided the rules and regulations are reasonably adapted for the purpose for which they were promulgated.

6. A verdict of a jury for damages for alleged personal injuries which is 'so excessive as to indicate passion, prejudice, partiality, mistake, or lack of due consideration, should be set aside upon motion for a new trial.' Syl., Thomas v. Lupis, 87 W.Va. 772 .

7. In the absence of a joint enterprise, the negligence of the driver of a motor vehicle cannot be imputed to the guest passenger in the vehicle.

8. The relationship of joint enterprise between the owner of an automobile driving the same and a guest passenger in the vehicle is not established by the mere fact that the driver and passenger were riding together to the same destination for a common purpose, where the passenger had no voice in directing and controlling the operation of the automobile.

9. 'Where a personal injury case is submitted to a jury, and in the course of the trial a view of the premises where the injury occurred is had, the jury, in arriving at its verdict, may, along with all the testimony introduced at the trial, and in explanation thereof, give consideration to that which it observed on the view.' Pt. 3, Syl., Thorn, Adm'r, v. Addison Brothers, & Smith, 119 W.Va. 479 .

10. An instruction is properly refused which refers the jury to the declaration for the purpose of having the jury determine what the acts of negligence charged against the defendant are.

11. The refusal to give an instruction which is abstract is not reversible error.

12. In an action to recover damages for personal injury in which there is sufficient evidence upon which the jury could find that the defendant was guilty of primary negligence and that the plaintiff was guilty of contributory negligence, it is reversible error for the trial court to refuse an instruction, which is in the proper form and properly sets forth defendant's theory of the case on the question of contributory negligence, where the instruction offered is not covered by any instruction given.

Bailey, Worrell & Bailey, Pineville, for plaintiff in error.

Kingdon & Kingdon, and Arthur Ritz Kingdon, Mullens, for defendant in error.

RILEY, Judge.

In this action of trespass on the case, instituted by Ruth M. Frampton against Consolidated Bus Lines, Inc., a corporation, in the Circuit Court of Wyoming County, the plaintiff sought to recover damages in the amount of fifteen thousand dollars for personal injuries alleged to have been sustained by her as the result of a collision of the automobile, in which plaintiff was riding, it being driven by her husband, Preston E. Frampton, with the rear end of defendant's passenger bus. At the time of the collision the Frampton car and defendant's bus were going in the same direction upon an open country portion of the Beckley-Mullens highway, at a point just south of the northerly limits of the City of Mullens. The defendant prosecutes this writ of error to the action of the trial court in overruling its motion to set aside a verdict in the amount of $7500.00 in favor of plaintiff, grant a new trial, and in entering judgment on the verdict.

The first trial of this case resulted in a jury verdict for plaintiff in the sum of $4,000.00, which verdict was set aside by the circuit court on the ground that certain Public Service Commission traffic regulations given in evidence were improperly admitted.

The declaration alleges that the defendant, through its bus driver failed 'to exercise due care to warn plaintiff and other passengers in, and operators of, automobiles approaching and overtaking said automobile bus or motor coach from its rear of his intention to bring said automobile bus or motor coach to a stationary position or stop, and as incident thereto: (1) to maintain and then and there operate the warning or stoplights which the rear portions of said automobile busses or motor coaches are required by the laws of the State of West Virginia to be equipped; and (2) to turn said automobile bus or motor coach off the travelled and paved portion of said highway and onto the right-hand shoulder of said highway as far as the condition and width of said highway should safely permits, as required by the laws of the State of West Virginia.' Though the declaration does not allege any failure of defendant bus company's driver to give the arm signal of his intention to stop on the highway, as required by Code, 17-8-9, the plaintiff was permitted, over objection, to introduce evidence bearing on the failure of defendant's bus driver to give the said signal of his intention to stop. And, in support of the court's action, reliance is had on the general allegations as to negligence contained in her declaration, which read that the defendant bus company's driver 'so carelessly, negligently, recklessly and unlawfully operated said bus at said time and place that by reason of the negligence aforesaid, said Plymouth automobile in which plaintiff was being conveyed as a passenger and guest was caused to run into and collide with the rear end of said motor bus and to strike the same with great force and violence * * *'.

The collision occurred within the limits of the City of Mullens, about midway of a 1,100-foot straightaway, which was level except for a slight rise at the northern end of the straightaway. At the place of the collision the berm on the east side of the highway was from four to six feet, and at the point where the bus had stopped ran back to a yeard fence from fifteen to twenty-one feet. It is the position of plaintiff and her husband, and he so testified, that the sedan in which they were riding, was being driven at a speed of thirty-five to forty miles an hour, and at a distance of approximately sixty feet behind the bus at the time he became aware that the bus had stopped.

Frampton testified that he immediately increased his speed, intending to pass the bus, when he was confronted with an express truck some seventy-five to one hundred feet away, approaching from the south at an estimated speed of forty miles an hour; that concluding that there was not sufficient distance to pass, he cut back into the right lane, applied his brakes and skidded into the rear end of the bus. This witness testified in support of plaintiff's theory of the case that the bus stopped suddenly; that the stoplights did not go on at the back of the bus; and that the bus driver did not give a hand signal of his intention to stop.

The driver of the express truck testified that at the time he first saw the automobile in which plaintiff was a passenger, he was about seventy-five to eighty feet south of the bus, and was driving about twenty-five miles an hour; that he slowed down to a speed of four or five miles an hour and cut over to the berm on his right side of the highway to make room for the Frampton car; and that he brought his truck to a stop opposite the bus.

The bus driver testified to the effect that at the time he stopped the bus to pick up passengers, there was no automobile in sight, and that whether he used the hand signal did not matter in the circumstances portrayed by this record. He, together with two passengers on the bus, and Mrs. Ferrell, who was flagging the bus when it came to a stop, testified that the bus was stopped on the right berm of the highway, and that the bus driver had opened the door for Mrs. Ferrell and her child to board the bus when the impact of the automobile with the back end of the bus occurred.

Mrs. Frampton testified that she and her husband were driving from Beckley to Mullens in their 1936 Plymouth sedan, enroute from the City of Newfield, New Jersey, to visit relatives in Mingo County, West Virgina; that she saw no stoplights on the bus; that at no time before the bus was brought to a sudden stop did she realize that it would stop; and that the bus driver gave no hand signal of his intention to stop the bus. She testified that she did not give her husband warning that the bus was going to stop, because she 'didn't have time to; it stopped so suddenly', and that 'I think we noticed it about the same time'; and...