Hersman v. Roane County Court

• Decision Date: 30 March 1920
• Docket Number: (No. 3685.)
• Citation: 102 S.E. 810
• Parties: HERSMAN . v. ROANE COUNTY COURT.
• Court: West Virginia Supreme Court

102 S.E. 810

HERSMAN .

v.ROANE COUNTY COURT.

(No. 3685.)

Supreme Court of Appeals of West Virginia.

March 30, 1920.

(Syllabus by the Court.)

Error to Circuit Court, Roane County. Action by M. E. Hersman against the County Court of Roane County. Verdict and judg ment for defendant, and plaintiff brings error. Reversed and remanded for a new trial.

Thos. P. Ryan, of Spencer, and Chas. E Hogg, of Point Pleasant, for plaintiff in error.

H. C. Ferguson, of Spencer, for defendant in error.

WILLIAMS, P. Plaintiff, M. E. Hersman, brought this action against the county court of Roane county to recover damages for a personal injury and injury to his automobile, caused by colliding with a heavy road presser alleged to have been negligently left standing in the public road. The trial resulted in a verdict and judgment for the defendant, and plaintiff brings the case here on writ of error.

About 9 o'clock on the evening of June 29, 1917, plaintiff and the chauffeur, in company with three young ladies, were driving on the public road leading south from the town of Spencer, and collided with the presser, which had been left standing on the paved surface of the road and within about 2 inches of the edge thereof to plaintiff's right. The road presser was about 6 feet in width, 10 feet in height, and weighed about 10 tons. The road was paved, and had been traveled by the public for several months prior to the accident. The chief defense relied on is plaintiffs alleged contributory negligence. The road, at the point of the accident, is 16 feet wide, leaving a clear space of 10 feet to the left of the presser, over which plaintiff could have driven and thus have avoided the collision. The testimony of plaintiff's witnesses proves that the chauffeur was competent and experienced; that he was driving carefully at the time, at a speed variously estimated by the different witnesses at from 6 to 15 miles per hour; that he' had his lights on full until he saw two or three automobiles approaching him from the opposite direction; that on approaching the one nearest to him he dimmed his lights, according to the custom when passing other automobiles, because a glaring light in the face of the driver blinds him, and renders it more difficult to estimate distances correctly than by the use of a dimmer light; that, seeing another car coming toward him, after he passed the first one, he continued to use his dimmer for a distance of about 200 feet farther, and at the end of this distance ran against the road presser, and just as he struck it the automobile that was approaching passed him. It is proven that the dimmer cast a light enabling the driver to see only about 14 feet. Neither plaintiff nor the chauffeur knew the presser was in the road near the point where they collided with it. It had been moved to that place on the evening of the accident.

The automobile was a new one and carried no license tag, nor had a license to operate it been applied for, as required by sections 130, 131, and 141 of chapter 43, Code 1918 (Code Supp. 1918, §§ 1910—129, 1940— 130, 1940—140), and on defendant's request the court gave the jury the following instruction, which Is the principal error assigned:

"The court instructs you that although you may believe that the defendant caused, permitted, or allowed the road presser or roller described in the evidence to be in a public road in this county, and that plaintiff was riding in an automobile and sustained injury by the same being accidentally driven against said road presser or roller, and that the same was without lights or signals thereon, and that the plaintiff and the driver of said automobile had no warning of the presence of said presser or roller, yet if you believe said automobile was at that time owned by J. P. Price, and that said J. P. Price had neither applied for nor received any license to operate said automobile, then you shall find for the defendant, unless you further believe that the defendant caused, permitted, or allowed said road presser or roller to be in said road, with the intention or design that it might thereby cause injury to some person or his property, or was placed there under such circumstances as to show such intention or design. In other words, before plaintiff can recover, if you believe he was riding in an unlicensed automobile, you must believe that he was injured by reason of some unlawfully reckless or wanton act of the defendant. And you are further instructed that if you believe from the evidence that the person who had said road presser or roller in his immediate charge placed the same in the public road for the purpose of more conveniently using or operating the same, and without any design or intention of causing injury to another or his property, and that said presser or roller was not, at the time of the accident, being operated by any one, then you cannot find that the defendant was guilty of doing a reckless or wanton injury."

This instruction is-erroneous, and should not have been given. It is almost uniformly held by the courts of this country that a person is not precluded from recovering damages for an injury caused by the negligence of another, even though he is himself, at the time of the injury, doing some unlawful act, unless such unlawful act has some causal connection with or contributes in some way to the injury. Plaintiff's failure to have his car registered and a license to operate it has no apparent connection with or relation to his injury. It is in no sense a contributing cause thereto. 1 Shearman & Redfield on Negligence (6th Ed.) § 104. The author there states the law to be as follows:

"If the plaintiff is acting in violation of a statute or ordinance at the time of the accident, and such violation proximately contributes to his injury, he is guilty of contributory fault, and is as much debarred from recovery as in other cases of contributory negligence. But if such violation did not so contribute to the injury it is no defense."

Cooley on Torts (3d Ed.) vol. 1, p. 273, says:

"The fact that a party injured was at that time violating the law does not put him out of protection of the law; he is never put by the law at the mercy of others. If he is negligently injured in the highway, he may have redress, notwithstanding at the time he was on the wrong side of the way, provided this fact did not contribute to the injury. So, where one is injured by reason of a defect in the highway, it is no defense that he was at the time driving at an unlawful speed, provided the latter fact did not contribute to the injury."

The doctrine laid down by these text-writers is upheld by the great weight of the decisions. Southern Ry. Co. v. Vaughan's Adm'r, 118 Va. 692, 8S S. E. 305, L. R. A. 1916E, 1222, Ann. Cas. 1918D, and cases collated in note at page 847; Lockridge v. Railway Co., 161 Iowa, 75, 140 N. W. 834, Ann. Cas. 1916A, 158; Black v. Moree, 135 Tenn. 73, 185 S. W. 682, L. R. A. 1916E, 1216; Cent. Ind. Ry. Co. v. Wishard (Ind. App.) 104 N. E. 593; Brown v. Green &...