Hendricks v. MonongaHela West Penn Pub. Serv. Co.
| Decision Date | 23 February 1932 |
| Docket Number | (No. 7064) |
| Citation | 111 W.Va. 576 |
| Court | West Virginia Supreme Court |
| Parties | H. H. Hendricks, Admr. v. MonongaHela West PennPublic Service Company |
Where the father sues as administrator of the estate of his infant child for damages occasioned by the wrongful act of another, he cannot recover if it appears that the negligence of the father or of the custodian of the child to whom he entrusted it, proximately contributed to the death. (Swope v. Coal & Coke Co., 78 W. Va. 517, 89 S. E. 284.)
In the absence of special circumstances justifying it, the party introducing a witness should not be permitted to elicit the information he desires by leading questions.
Other accidents, injuries or defects in order to be admissible in evidence at all in a negligence suit must be such as have occurred substantially at the same place and under substantially the same conditions as those involved in the suit, and caused by the same or a similar defect, danger, or act of the same person.
Where the negligence of a person in performing an act is at issue, a witness should not be permitted to give his opinion that the person did, or did not, act with due caution and care. The question is to be decided by the jury from the facts before it, and not from the opinion of a witness.
Where a witness has given evidence under oath in a former proceeding which is at variance with his evidence at a trial, the former evidence should be admitted to the jury, although the witness says he does not remember, for reasons stated, the purport of the evidence he formerly gave.
Appeals to the sympathy of the jury in argument, in the teeth of an instruction that they should not let sympathy sway them in finding their verdict, is deprecated and condemned, and although the court has told the jury to disregard the appeal, it may, in some cases, be prejudicial and constitute reversible error.
Error to Circuit Court, Wood County.
Action by H. H. Hendricks, administrator of the estate of his daughter Emma Hendricks, against the Monongaiiela West Penn Public Service Company. Judgment in favor of the plaintiff, and the defendant brings error. Judgment, reversed; verdict set aside; new trial awarded.
K. C. Moore, and Robert B. McDougle, for plaintiff in eror.
James S. Wade and Russell, Hiteshew, Adams & Hill, for defendant in error.
Plaintiff, as administrator of the estate of his daughter, Emma, obtained verdict and judgment for fatal injuries to her in crossing accident on Camden Avenue in a surburb of the city of Parkersburg on August 1, 1928, and defendant below prosecutes error.
Plaintiff operated a truck for delivery of milk to his customers, driven by an employee, Harold Kneisley, a boy of 17 years of age. The truck began its evening deliveries August 1, 1928, and the deceased girl (age 11 years, 8 months and 15 days), her mother, and her younger brother accompanied the driver. The mother intended to do some shopping at Fort Neal on the milk route. About seven p. m. the truck approached the crossing from a covered driveway by a lumber mill, and in passing over that crossing collided with a heavy street car of defendant, resulting in the death of the girl. A photostatic copy of a map introduced at the trial will visualize the surroundings.
The negligence charged is excessive speed of the car, failure to give warning of its approach at the crossing, failure to maintain proper lookout ahead, placing freight cars on the lumber plant siding obstructing view, and operating its car so carelessly that it left the main line at the frog of a switch near the crossing and struck the truck on the switch track over which the crossing ran; all without fault on the part of the deceased girl. Defendant interposed demurrer, which was overruled, and pleaded the general issue.
There is the usual conflict in the evidence as to the speed of the car and of the truck. The car was on schedule time and was running about twenty miles per hour according to most of the witnesses. No warning signal was given by the motorman as the car approached the crossing, which he regarded as not being a public crossing, and used by the lumber plant which had closed two hours before. There is also the usual controversy as to how far the approach to the crossing could be seen by the motorman, and how far the car could be seen by the occupants of the truck as they aproached the crossing. There is much conflict in the evidence as to whether the impact occurred on the main line over which the crossing ran, or whether the car left the main line and collided with the truck on the switch track. Many disinterested witnesses say the car was on the main line at the time of the impact, and was on the main line immediately after the acident, while a less number of witnesses testify to the contrary, and refer to alleged physical facts which they say sustain their evidence. Defendant denied that it was negligent, and also relied upon contributory negligence of the driver of the truck, plaintiff's employee.
The court refused to submit to the jury the question of negligence of the driver of the truck, and limited that defense to contributory negligence, if any, of the deceased girl, telling the jury that if they found negligence on the part of defendant, then they should find for the plaintiff, unless they found that plaintiff's decedent, the girl, was guilty of contributory negligence; also telling the jury that the law presumes that a child under the age of fourteen years has not the capacity to be guilty of contributory negligence, and the burden was on defendant to rebut that presumption. Defendant offered and was refused an instruction telling the jury that the plaintiff was the sole beneficiary, and if they believed from the evidence that the driver was in the father's employment at the time of the accident and his negligence proximately contributed to the death of the girl, then the contributory negligence of the driver was the contributory negligence of plaintiff. Other instructions based on the theory that the driver negligently entered the crossing, and did not use caution commensurate with the danger, were offered and refused. The court, as above suggested, held that the driver's contributory negligence, if any there was, could not defeat recovery, if defendant was negligent, The oral argument and much of the briefs are addressed to the alleged error of the instructions given and refused in this regard. It appears from the record that it was customary for Emma, the deceased, and other children of plaintiff (there were eight children in all) to go with the driver and assist him in making deliveries of milk. Plaintiff knew that Emma often went with Kneisley, the driver, but could not say how often. He says that she did as his other children did, and that he also permitted other children to go along and make deliveries, of milk. He says he did not know she had gone on the trip that evening; she did not have his consent or denial to take that particular trip, and the mother says the girl was permitted by her to go along. There is abundant evidence that Emma had been in the habit of going along and making deliveries; and there is evidence tending to show that a few minutes before the accident she left the truck and made a delivery to, and received pay from, a customer at the lumber mill. It is evident that the father knew that Emma frequently went out on the truck for the purpose of assisting the boy in making deliveries, and thus trusted him to use commensurate care for her safety. There is nothing to show that he would not have permitted her to go along on this occasion, accompanying her mother, thus adding additional care for her safety. She went with his tacit consent; and he does not pretend to say that he would have refused the journey, had he known. The theory on which beneficiaries are precluded from recovery because of contributory negligence is that a person should not be allowed to profit by his own negligence. Such is the principle stressed in Swope v. Coal Co., 78 W. Va. 517, 520, 89 S. E. 284; Dickinson v. Colliery Co., 71 W. Va. 325, 329, 76 S. E. 654; and kindred cases, where a parent had by direct or tacit consent placed his child in situations of danger and attempted to reap a benefit because of the death resulting therefrom. The New York courts have consistently followed the rather harsh rule laid down in Hartfield v. Roper, 21 Wend. 615, 34 Am. Dee. 273, which holds that contributory negligence of a parent, guardian, or one in loco parentis is imputed to a plaintiff who is non sui juris, and who is therefore, in law, under the charge and control of such parent, guardian or person in loco parentis. The courts of Maine, Massachusetts, California, Maryland, Minnesota and Indiana have followed the New York rule with modifications in important particulars. But we have not strictly followed that rule, and where the infant is injured and the suit is for its benefit, the contributory negligence of the parent, or one in loco parentis, is not a bar. Prunty v. Traction Co., 90 W. Va. 194, 203, 110 S. E. 570. But it is otherwise where the infant is killed, and the negligent parent sues as beneficiary. Dickinson v. Colliery Co., 71 W. Va. 325, 76 S. E. 654. Such is the rule in Ohio. See Belief ontaine Ry. Co. v. Snyder, 24 Ohio St. 670. There were two suits from the accident in the Ohio case; the first brought in the child's name for injuries, and the contributory negligence of the person to whom the parent had entrusted the child was held not to be a bar; but in the subsequent suit by the parent in his name and for his benefit, the contributory negligence of the person to whom the parent entrusted the child was held to be the contributory negligence of the parent and defeated recovery.
There is abundant authority holding that where the suit is for the benefit of...
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