Isgan v. Jenkins

• Decision Date: 23 May 1950
• Docket Number: No. 10217,10217
• Citation: 134 W.Va. 400,59 S.E.2d 689
• Court: West Virginia Supreme Court
• Parties: ISGAN, v. JENKINS et al.

Page 689

59 S.E.2d 689

134 W.Va. 400

ISGAN, v. JENKINS et al.

No. 10217.

Supreme Court of Appeals of West Virginia.

Submitted April 25, 1950.

Decided May 23, 1950.

Syllabus by the Court

1. 'Upon conflicting testimony as to the facts, questions of negligence and contributory negligence are ordinarily for jury determination.' Syllabus, Nichols v. Raleigh-Wyoming Mining Co., 116 W. Va. 163 .

2. 'The doctrine of the last clear chance implies a sufficient interval of time for both appreciation of the dangerous situation and effective effort to relieve it.' Syllabus, Juergens v. Front, 111 W. Va. 670 .

3. Giving to the jury an instruction based upon the last clear chance doctrine in a case where that doctrine has no application constitutes reversible error.

Robert W. Lowe, Amos & Amos, Curt E. Amos, John D. Amos, Fairmont, for plaintiffs in error.

Furbee & Hardesty, Russell L. Furbee, Raleigh Lee Stubbs, C. Howard Hardesty, Jr., Fairmont, for defendants in error.

GIVEN, Judge.

This is an action of trespass on the case, for recovery of damages for personal injuries suffered by the plaintiff, Frank B. Isgan, while attempting to enter a taxicab belonging to the defendant, Oscar Jenkins, then being operated by the defendant Ernest Hanley. The action was instituted in the Circuit Court of Marion County against Oscar Jenkins, doing business as Jenkins Taxi, Great American Indemnity Company, a corporation, Ernest Hanley, Charles Efaw and Earl Junior Efaw. The Great American Indemnity Company and Earl Junior Efaw were dismissed from the action by the lower court on motion fo the plaintiff, and Charles Efaw was dismissed from the action, after introduction of evidence, on his own motion. The case was tried before a jury, a verdict returned in favor of the plaintiff against both defendants for $7,000, and judgment entered for the plaintiff for the amount of the verdict, but only against the defendant, Oscar Jenkins, doing business as Jenkins Taxi. Upon petition of the defendants Jenkins and Hanley this Court granted a writ of error and supersedeas to that judgment. Inasmuch as there is no final judgment as to the defendant Ernest Hanley the writ of error and supersedeas so granted must be dismissed as to him as having been improvidently awarded.

The injury complained of occurred on Mill Street in the Town of Farmington on April 25, 1947, at about 7:50 P.M. The taxi, a four door sedan, was owned by the defendant Oscar Jenkins, and was then being operated by the defendant Ernest Hanley, an employee of Jenkins. The taxi was parked on the street on its left side, facing traffic, in front of the taxi office. It was dark but a light was burning over the taxi office and a street light at the intersection of Mill Street with another street about twenty feet distant from the parked taxi was burning. The taxicab motor was not running and its lights were not burning. There was thirteen or fourteen feet of paved street between the parked taxi and the curb on the opposite side of the street for use of traffic. An automobile approaching the parked taxi from the direction in which the taxi was headed could have been observed for a distance of at least two hundred feet. An ordinance of the town prevented automobiles from parking on the side of the street opposite the parked taxi. Apparently it had been the practice of drivers of taxicabs to park their cabs at or near the front of the taxi office, headed in either direction, depending upon the direction from which they had arrived.

Plaintiff had, on previous occasions, employed a taxi of defendant to drive him to his place of work at the Jamison Coal Company No. 9 Mine and was familiar with the manner in which the taxicabs were usually parked, as well as with the surrounding conditions described above. A short time before his injury the plaintiff announced to the taxi driver his destination and paid to the driver the fare to that destination. After receiving the fare the driver handed plaintiff a cover for the seat and directed plaintiff to place the same upon the front seat of the cab where plaintiff was to ride. Plaintiff went around the rear of the taxi into Mill Street, opened the front door, placed the seat cover upon the front seat and, as he was straightening up to get into the cab, with his feet on the street and between the right front door and the body of the cab, a truck driven by Charles Efaw struck the door of the cab, thereby throwing the plaintiff against the body of the cab and causing the injury. At the time of the injury the taxi driver was standing with his face toward the rear of the cab, collecting fares from other passengers who had been placed in the rear seat. No one saw the truck before it struck the door of the cab, but the driver of the taxi, upon hearing the noise of the impact, looked and saw the truck passing, ran after it, talked with the driver after the truck had stopped, and found the driver of the truck intoxicated.

The plaintiff testified that the taxi driver told him to get into the cab and that he 'went in the road to get in the taxi and the driver threw the cover over to me and says 'Frank, put the seat cover on while I look up and down the road.' I got a hold of the seat cover and just as I got the seat cover put on and straightened out something hit; * * *'. Plaintiff denies that he was ever warned by the defendant or his drivers to be careful when going around on the street side of the taxi. He admits that he did not look for approaching cars while placing the cover on the front seat. The driver of the taxi denies that he instructed the plaintiff how to enter the cab or to go around the cab and enter it from the street side, and says that plaintiff could have gotten into the front seat from the sidewalk. He further testifies to the effect that he had, on many prior occasions, warned the plaintiff about entering the cab from the center of the street; that he knew it was dangerous to enter the cab from the street side; that it was not customary for passengers to enter taxicabs from the street side, and that he had been parking the taxicab with its left side to the curb 'right along'.

The defendant Jenkins complains of the action of the trial court in not instructing the jury to return a verdict for the defendant, for the reason that the plaintiff failed to prove negligence on the part of the defendant, and for the further reason that, admitting for the purpose of the question such negligence was proved, the plaintiff was guilty of contributory negligence as a matter of law. He also complains of the action of the trial court in giving to the jury plaintiff's instruction No. 4 and in refusing to give to the jury defendant's instructions Nos. 1, 2, 3 and 9.

Was there sufficient evidence of negligence of defendant to take the case to the jury? In considering this question we must keep in mind that plaintiff, at the time of the injury, was a passenger of a common carrier, and that the duties of a common carrier toward its passengers are different from those where that relationship does not exist. The rule, as applied in this jurisdiction, is stated in Bennett v. Bartlett, 110 W.Va. 478, 158 S.E. 712, to be: 'It is now a settled rule that the owner of a motorbus operated as a common carrier, owes to passengers for hire the duty to exercise for their safety the highest degree of care which is consistent with the practical operation of the vehicle. The 'highest degree of care,' however, is not an absolute but a relative phrase. It does not imply continuity of the most perfect human care, but the highest degree of care which a man of ordinary prudence would bestow under similar circumstances.' Kaufman v. Charleston Transit Company, 117 W.Va., 591, 186 S.E. 617. Also, we must look only to the evidence of plaintiff in considering this question and indulge all reasonable inferences that may be drawn therefrom. Parsons v. New York Cent. Railroad Co., 127 W.Va. 619, 34 S.E.2d 334; Fielder v. Service Cab Company, 122 W.Va. 522, 11 S.E.2d 115; Nichols v. Raleigh-Wyoming Coal Company, 112 W.Va. 85, 163 S.E. 767. In view of the degree of care required of the defendant as a common carrier, the fact that his taxicab was parked on the wrong side of the street, and the testimony of the plaintiff to the...