Isabella v. West Va. Transp. Co.

• Decision Date: 30 November 1948
• Docket Number: (No. 10043)
• Citation: 132 W.Va. 85
• Parties: Mary A. Isabella v. West Virginia Transportation Company
• Court: West Virginia Supreme Court

132 W.Va. 85

Mary A. Isabella

v.West Virginia Transportation Company

(No. 10043)

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1948.

Decided November 30, 1948.

1. Instructions

In an action to recover damages for personal injuries resulting from an accident, a defendant's negligence, to be actionable, must be the proximate cause of plaintiff's injury, and it is reversible error to give an instruction ignoring that principle.

2. Negligence

It is a rule of general application that negligence is never presumed and must be proved to justify a recovery of damages for personal injuries resulting from an accident. However, a prima facie case of negligence on the part of defendant arises when it is shown that plaintiff was injured while passively riding as a passenger in defendant's vehicle, operated as a common carrier of passengers.

Error to Circuit Court, Taylor County.

Action of trespass on the case by Mary A. Isabella against West Virginia Transportation Company for per- sonal injuries sustained when defendant's bus in which plaintiff was a passenger overturned. To review the judgment, defendant brings error.

Judgement reversed; verdict set aside; new trial awarded

Raymond and Fox, Judges, concurring.

James C. McManaway and H. Laban White, Jr., for plaintiff in error.

/. Raymond Murphy, for defendant in error.

Lovins, Judge:

This action of trespass on the case, instituted in the Circuit Court of Taylor County by Mary A. Isabella against West Virginia Transportation Company, a corporation, resulted in a verdict and judgment in favor of plaintiff in the sum of eighteen hundred dollars. The case is here on writ of error.

On November 6, 1946, plaintiff was a passenger on a motor bus operated by defendant, as a common carrier, intending to travel from her home at Flemington, West Virginia, to the City of Grafton. The bus was driven by a newly employed driver, but an expert and experienced driver was in charge of the bus and, at the time of the accident, supervised its operation from a seat immediately behind the driver.

En route, defendant's bus was driven on the berm of the road, which, being wet, gave way, and the bus was precipitated into a ditch along side the road, stopping with its left wheels in the air, and its right side resting on the ground. Plaintiff was thrown from her seat into the aisle and another passenger fell on her.

As a result of the accident plaintiff alleges she suffered a fracture and displacement of the coccyx, as well as a fracture of the right transverse process of one of the lumbar vertebrae. An examination made in January, 1947, disclosed an abnormal condition in plaintiff's back, diagnosed as a "partial straightening of the normal lumbar curves". Plaintiff testified she suffered considerable pain and discomfort from the injuries, and had incurred debts of approximately $189.10 for care, treatment and incidental expenses respecting the same.

Defendant explained the occurrence which caused plaintiff's injuries by introducing testimony tending to show that the paved portion of the road on which the bus was being operated at the time of the accident was approximately sixteen feet wide, having a soft berm on the right side about one foot in width; that just before the accident a loaded motor truck travelling in the opposite direction approached the bus at a speed of about forty-five miles an hour; that the motor truck was being driven on the wrong side of the road; and that in order to prevent a collision between the truck and the bus, the driver of the bus drove on the berm of the road, and thereupon the bus slid into the ditch.

The driver of the bus testified that he first saw the truck about one hundred fifty to two hundred feet away, and that he thought it would move over to the proper side of the road to allow the bus to pass. But when he realized that the truck did not move to the proper side of the road, it was too late to stop, and the only course open to him then was to drive on the berm.

Plaintiff and other witnesses testifying in her behalf say that they knew nothing about the truck. However, defendant's explanation is supported by the driver in charge of the bus and two other witnesses.

On the foregoing facts the jury found a verdict for the plaintiff in the amount above stated, and the court, after overruling a motion to set aside the verdict, entered judgment thereon.

Defendant in seeking reversal of this judgment assigns errors based upon the following propositions: (1) That instructions tendered by plaintiff should not have been given, and that instructions offered by defendant should have been given; and (2) that the evidence is not sufficient to sustain the verdict.

Although the improper admission of evidence is assigned in this Court as error, and defendant gave it as one of the grounds in support of its motion to set aside the verdict and grant a new trial, no special bill of exceptions is found in the record setting forth the objectionable evidence. Moreover, defendant in its brief fails to point out any specific part of the evidence as being objectionable. This Court has held: "On the party complaining rests the duty of specifying the evidence by him deemed improperly admitted over his objection. When not so designated, the appellate court will not search for the objectionable testimony." McKinney v. McKinney, 77 W.Va. 58, 87 S.E. 928. See Angrist v. Burk, 11 W.Va. 192, 87 S.E. 74;Bartlett v. Bank, 11 W. Va. 329, 87 S.E. 444; State v. Noble, 98 W.Va. 432, 123 S.E. 237; State v. Dudley, 96 W.Va. 481, 482, 123 S.E. 241. Accordingly, we do not consider the assignment of error based upon the admission of evidence.

The giving and refusal of instructions are made the basis of four assignments of error, which we have consolidated as above stated.

Plaintiff's instruction No. 1, which was given over defendant's objection, reads as follows: "The Court instructs the jury that the law in tenderness to human life and limbs, holds public carriers of passengers for hire liable for the slightest negligence, and compels them to repel by satisfactory proofs every imputation of such negligence. Therefore, if you find by a preponderance of the evidence in this case that the defendant, by and through its agent, the driver of the motorbus, was guilty of negligence in the slightest degree whereby plaintiff's injuries, if any, re- suited, you may find for the plaintiff in an amount adequate to compensate her for the injuries she may have sustained, if any, not to exceed the sum of $2900.00."

This instruction is quoted in part from an instruction discussed in Farley v. Railway Co., 67 W.Va. 350, 355, 67 S.E. 1116, and, in so far as it states the degree of care owed by defendant to plaintiff, the instruction is unobjectionable. However, by specific objection defendant raises the question whether it can be charged with the "imputation" of negligence.

It is a general rule that negligence is not presumed but must be shown. Cooper v. Motor Co., 128 W.Va. 312, 36 S.E. 2d 405; Fleming v. McMillan, 125 W.Va. 356, 26 S.E. 2d 8; Agsten v. United Fuel Gas Co., 117 W.Va. 515, 523, 186 S.E. 126.

But in action by a passenger to recover damages for accidental injuries sustained while riding in a vehicle operated by a common carrier, a well defined exception exists. In the case of Farish & Co. v. Reigle, 11 Graft. 697, decided in 1854, it was held: "Where a passenger is injured by the upsetting of the coach, the presumption is, that it occurred by the negligence of the driver; and the burden of proof is on the proprietors of the coach, to show there was no negligence whatsoever." The foregoing holding in the Farish case was modified by this Court in the case of Blake v. Camden Interstate Ry. Co., 57 W.Va. 300, 50 S.E. 408. In the Blake case it was reasoned that the rule laid down in the Farish case does not apply where the injury of a passenger was accompanied by "* * * an active voluntary movement on his part, combined with some alleged deficiency in the carrier's means of transportation or accommodation * * *." However, in instances where a passenger occupies a carrier's vehicle and engages in no active, voluntary movement the doctrine of the Farish case is applicable. Blake v. Camden Interstate Ry. Co., supra.

In the case of Venable v. Taxi Line, 105 W.Va. 156, 141 S.E. 622, this Court held that if injury to a passenger would not have occurred but for the gross negligence of the carrier, negligence is prima facie imputed to the carrier from the bare fact of the injury.

We think an exception to the general rule that negligence is never presumed may be stated that where the relationship of common carrier and passenger is shown and the passenger was injured while passively riding in the carrier's vehicle, a prima facie case of negligence on the part of the carrier exists, sufficient to take it to the jury. In such instance, it is incumbent upon the carrier to rebut such prima facie case by showing there was no negligence. Plaintiff's instruction No. 1 substantially states this doctrine, and in that respect it is not erroneous.

Plaintiff's instruction No. 2 states almost verbatim, the doctrine laid down in the Farish case, and in that respect it is free from objection. But we think that both plaintiff's instructions Nos. 1 and 2 are defective in that each does not require the jury to believe that the negligence of defendant was the proximate cause of plaintiff's injury. No citation of authority is required for the basic proposition that a defendant's negligence, to be actionable, must be the proximate cause of plaintiff's injuries. In this Court we consider only specific grounds of objection to instructions. Rule VI (e), Rules of Practice and Procedure for Trial Courts, 116 W.Va. lxiii; Deitz v. County Court, 122 W.Va. 296, 8 S.E. 2d 882; Bragg v. C. I. Whitten Transfer Co., 125 W.Va. 722, 26 S.E. 2d 217; Slater v. Gas Co, 126 W.Va. 127, 132, 27 S.E. 2d 436. See Raines v. Faulkner, 131 W.Va...