Haffner v. Cross, (No. 8111)

• Decision Date: 12 November 1935
• Docket Number: (No. 8111)
• Citation: 116 W.Va. 562
• Parties: S. B. Haffner v. T. B. Cross, Receiver, Etc.
• Court: West Virginia Supreme Court

116 W.Va. 562

S. B. Haffner

v.T. B. Cross, Receiver, Etc.

(No. 8111)

Supreme Court of Appeals of West Virginia.

Submitted November 5, 1935.

Decided November 12, 1935.

1. Automobiles

The driver of an automobile attempting to pass another car in front of him is bound to exercise a high degree of care and see that the situation is such that he can pass in safety.

2. New Trial

A verdict will not, ordinarily, be set aside for inadequacy where the preponderance of the evidence is in favor of defendant.

Error to Circuit Court, Randolph County.

Action by S. B. Haffner against T. B. Cross, receiver of the Senaca Trail Lines, Inc. To review a judgment setting aside a verdict for $25 in favor of plaintiff and granting him a new trial, the receiver brings error.

Reversed and rendered.

D. II. Hill Arnold and D. K. Crawford, for plaintiff in error.

E. L. Maxwell, for defendant in error.

Litz, President:

This is an action for personal injury and property damage sustained by plaintiff, S. B. Haffner, in an automobile accident resulting from the alleged negligence of the driver of a passenger motor bus owned by Senaca Trail Lines, Inc. A verdict for $25.00 in favor of plaintiff was set aside at his instance, and defendant, T. B. Cross, as receiver of Senaca Trail Lines, Inc., prosecutes error.

Haffner, while operating his 1931 model Chevrolet coupe automobile on a public road in Barbour County, August 1, 1933, attempted to pass (from the rear) the bus which was closely following a heavy loaded truck, left the highway, knocking down four or five fence posts, and lodging against a locust tree. Plaintiff contends that the bus was proceeding along the right side of the road when he turned his car left to pass it, and that when his car had reached a position alongside the bus it veered abruptly to the left, striking the hub cap of the right front wheel of the car and causing it to wreck. It appears by a preponderance of the evidence that the bus was in the act of passing the truck at the time plaintiff attempted to pass it. This conclusion is based not only upon the direct testimony for defendant but also upon the testimony and physical facts admitted by the chief witness for plaintiff who observed the accident at close range. According to this witness, plaintiff ran over a pile of Logs or poles, along the left side of the road, immediately before reaching the bus, which indicates that the bus was not adhering to the right of the road at the time plaintiff started around it. If the bus had been traveling on the extreme right of the road (which was of ample width for cars to pass each other), it would have been unnecessary for plaintiff to leave the traveled way in attempting to pass the bus. He admits that he was not sufficiently observant to see the truck before attempting to pass the bus. It was also shown by uncontradicted testimony that the tracks of the automobile led from the point where it lodged against the locust tree 125 feet to the pile of logs or poles. "A driver attempting to pass a car in front of him is bound to exercise a high degree of care and to see that the situation is such that he can pass in safety." Berry on Automobiles (6th Ed.), sec. 1034.

The verdict was evidently set aside on the ground of inadequacy, as the record does not show any technical errors raised by plaintiff. Assuming that the damages are greater than the...