French v. Princeton Power Co

• Decision Date: 11 March 1924
• Docket Number: (No. 5043.)
• Citation: 122 S.E. 171
• Court: West Virginia Supreme Court
• Parties: FRENCH. v. PRINCETON POWER CO.

122 S.E. 171

FRENCH.

v.PRINCETON POWER CO.

(No. 5043.)

Supreme Court of Appeals of West Virginia.

March 11, 1924.

(Syllabus by the Court.)

Error to the Circuit Court of Mercer County.

Action by Mary French against the Princeton Power Company. Judgment for defendant, and plaintiff brings error. Affirmed.

A. J. Eubliner, John Kee, and Russell S. Ritz, all of Bluefleld, for plaintiff in error.

H. E. De Jarnette, of Princeton, for defendant in error.

MILLER, J. In an action for personal injuries the judgment below, now under review, set aside the verdict of the jury in favor of plaintiff for $5,700 and awarded defendant a new trial.

This alleged error and the refusal of the trial court to pronounce judgment on the verdict in her favor are the only points urged by plaintiff for reversal.

It is alleged and proven that plaintiff sustained the injuries of which she complains by being struck by one of defendant's cars, on Princeton Avenue, in the city of Blue-field, and near where defendant's traction line crosses the overhead bridge across the Norfolk & Western Railway Company's track, and at a point on said avenue west of that bridge, somewhere between two hundred and fifty and three hundred feet from the bridge, the exact point not being definitely alleged or shown in the evidence, and while walking westward toward Bluefleld in the same direction the car was moving, and near the end of the sharp curve.

The negligence alleged and sought to be established by the evidence is that defendant's employees in charge of the car carelessly and negligently failed to keep a lookout for plaintiff in rounding this curve, and in approaching her from the rear as she was walking along the street where she had the right to be, failed to warn her of her danger, and thereby caused the rear end of the car overhanging its normal width on the street to strike her and knock her down, doing her the injuries of which she complains.

The motorman in charge of the car, as he was rounding the curve, saw the plaintiff in company with a young man, her nephew, walking along on the north side of the street, toward town, and safely passed them with the front end of the car, when they were from twenty to twenty-five feet, approximately, from the track. The extreme overhang of the car, back of but near the place where plaintiff was struck, did not exceed a foot and nine inches, and at the place where the evidence tends to show plaintiff was struck, the space between the overhang of the car and the northern line of the street is from five and a half to three feet; butthere was no fence along the street at that point and beyond the street there was an open space sufficient to furnish ample protection to pedestrians from any injury from moving cars, if needed. The motorman says, and he is corroborated in this by plaintiff's nephew, that he was moving over the curve very slowly, not faster than one could walk, plaintiff's nephew says that he both heard and saw the car as it came across the bridge, and that he guessed his aunt did also, although she says she did not; but she says her senses of sight and hearing were excellent. The nephew says, as all agree, that the front end of the car passed him and his aunt safely; that he did not stop, but continued to walk along behind her; that he was aiming to "hallo" to her, but did not as he "thought it would pass and wouldn't hit her." Plaintiff and her nephew resided near this curve, and both were familiar with the conditions existing there, with, the fact that the track of defendant crossed the overhead bridge, made the turn across the street and back again as stated; and with knowledge of the presence of the approaching car, and that the front end had safely passed both pedestrians, plaintiff apparently took no precaution to avoid being struck by the rear end of the car, but walked on deliberately into the place of danger.

Counsel for plaintiff on this hearing apparently rely on the fact that no gong was sounded by the motorman, or other warning given by him, and that the car was not stopped after passing plaintiff with the front end thereof until he was sure the rear end would pass her safely, knowing, as he must, that in making the curve, the end of the car would overhang the street as shown, and was likely to do her injury if she came within its reach. Is that the law of this case? We think not. The trial court, on request of defendant, told the jury by the first instruction, substantially, that it was the duty of the plaintiff in going upon the road to keep a reasonable lookout and take reasonable precautions against danger from cars on the track, and if she saw or could have seen the...