Kelly v. Checker White Cab
| Citation | 50 S.E.2d 888,131 W.Va. 816 |
| Decision Date | 30 November 1948 |
| Docket Number | 10059,10060. |
| Parties | KELLY v. CHECKER WHITE CAB, Inc., et al. (two cases). |
| Court | Supreme Court of West Virginia |
Syllabus by the Court
1. A master, the owner of a taxicab, who has instructed his servant, as its operator, not to transport any person as a guest, is not liable for injuries sustained by such person while riding free of charge in the taxicab entrusted to the servant and operated by him within the scope of his employment, in the absence of a showing that the injuries were caused by the willful and wanton conduct of the servant in its operation.
2. A guest of the driver of a taxicab must exercise reasonable care for his own safety and his failure so to do, in continuing to ride with the driver, after making repeated unheeded protests against the negligent operation of the taxicab and after being presented with a fair and reasonable opportunity to leave it, bars his right to recover damages from the driver for injuries caused by the driver's negligence in operating the taxicab in which the guest willingly continued to ride until the injuries occurred.
Salisbury, Hackney & Lopinsky, Samuel D Lopinsky and Jackson D. Altizer, all of Charleston, for plaintiffs in error.
D Jackson Savage and W. T. O'Farrell, both of Charleston for defendant in error.
The plaintiff, Violet Kelly, instituted this action of trespass on the case in the Circuit Court of Kanawha County to recover from the defendants Checker White Cab, Inc., a corporation, and its employee, Don Withrow, damages for personal injuries sustained by her when a taxicab owned by the company, driven by Withrow and in which she was riding as his guest, skidded and ran off a public highway in that county in the early morning of January 1, 1946. At the time of the wreck the taxicab was returning from Spencer to Charleston.
The declaration contains three counts. The first and second counts charge the defendants with negligence, and the third count charges them with willful and wanton misconduct, as the cause of the injuries of which the plaintiff complains. The defendants entered their plea of the general issue, to which the plaintiff replied generally, and issue was joined. The trial, at which a special judge presided, resulted in a general verdict for the plaintiff against both defendants for $3,000.00. At the conclusion of the evidence offered in behalf of the plaintiff, the defendants entered their motion for a directed verdict in their favor which was overruled. They made a similar motion at the conclusion of all the evidence which was also overruled. After the verdict was returned they moved the court to set aside the verdict and grant a new trial which the court refused to do. To the final judgment, entered upon the verdict, separate writs of error, which have been argued and submitted together, were awarded by this Court on the individual petitions of the defendants.
On December 31, 1945, and for some time previously, the plaintiff, a widow aged thirty four years, was employed at a restaurant located on Lee Street in Charleston and maintained living quarters in an upper story of the same building. Shortly before the hour to close the restaurnat that night, the defendant Withrow, who had been employed since the year 1942 by Checker White Cab as a driver of its taxicabs, stopped at the restaurant where another woman, aged twenty three years and a friend of the plaintiff, was present when he arrived. She had been staying with the plaintiff and had planned to spend that night at her apartment. There is some conflict in the evidence as to what occurred when Withrow came to the restaurant. He says that the younger woman, with whom he had been keeping company, asked him if he would take her and the plaintiff with him on a trip which he told her he was about to make from Charleston to Spencer and return in a taxicab which he was driving to transport a soldier as a passenger to that place. Her version is that Withrow told her that he wanted her company on the trip, that he insisted that she go with him, that she contended to go if he would permit the plaintiff to accompany them, and that he agreed to that arrangement. The plaintiff says that she did not want to go and at first refused because she intended to visit the home of her sister who lived several miles from Charleston and planned to go there by bus sometime after midnight and after she had closed the restaurant but that she finally yielded at the insistence of her friend and Withrow. Whatever induced the plaintiff and her companion to make the trip with Withrow free of charge as his guests is of no importance for it is admitted by both of them that they voluntarily decided to accompany him.
When he came in the taxicab to the restaurant Withrow had a passenger for Spencer who was riding in the front seat. After the plaintiff and her friend had agreed to go they entered the taxicab and occupied the rear seat. About midnight, with these occupants of the taxicab, Withrow started from the restaurant for Spencer which is located about fifty miles from Charleston. As the trip was undertaken for the purpose of transporting to Spencer a passenger for hire, Withrow was acting within the scope of his employment in operating the taxicab from Charleston to Spencer and in returning from Spencer to the place of the accident.
The night was cold and the traffic conditions were hazardous. The presence of snow and ice on the streets of Charleston and on the road from Charleston to Spencer made the surface of the highway slippery during most of the distance between those localities. The plaintiff knew that the weather was unfavorable and that the roads were in bad condition for travel. Her knowledge of the existence of these conditions was one of the reasons which she said she had for telling her friend and Withrow that she did not want to go with them. It is evident that she and her companion also knew that persons who were not paying passengers were not permitted by its owner to ride in the taxicab. They seek, however, to justify their action in making the trip without payment of any fare by them or by Withrow for them by his invitation to take them with him free of charge. A rule of the defendant, Checker White Cab, forbade its drivers to permit anyone to ride in any of its taxicabs who did not pay the required fare. Withrow knew the rule and he had been instructed that he would be discharged if he violated it.
When the taxicab arrived at Spencer, Withrow stopped it for a sufficient length of time to enable him to discharge his passenger and collect the fare. Withrow did not leave the taxicab at the time but the plaintiff and her companion got out to change to the front seat from the rear seat where they had been riding. When they against entered the taxicab at Spencer the plaintiff occupied the right side of the front seat and her friend sat between her and the driver. They then started on the return trip.
On the way back about twenty miles from Charleston they stopped for food at a restaurant in Clendenin. All of them got out of the taxicab at that place. The restaurant was closed and, after remaining at Clendenin for about five minutes, they again started for Charleston. About two miles from Clendenin, and at a point approxmately eighteen miles from Charleston, to avoid striking a truck approaching from the opposite direction, Withrow, while driving near the center of the road, suddenly turned to the right and, immediately after passing the truck, lost control of the taxicab. It skidded, left the road, ran over an embankment to the left, and turned on its right side at the bottom of the slope. The occupants, including the plaintiff whose back was in jured, crawled from the taxicab through an opening in the broken windshield and went at once to the home of a man who lived nearby where the plaintiff was cared for by his wife.
Shortly after the wreck Withrow, who requested the two women and the man and his wife not to tell his employer of the presence of the women in the taxicab, went to a telephone and reported the accident to the Charleston office of the company.
The wreck occurred about three thirty o'clock in the morning of January 1, 1946. About six o'clock, in response to the telephone call, employees of the company came to the scene. They and Withrow placed the taxicab in an upright position and he drove it back to Charleston. It does not appear that the taxicab sustained any damage other than the broken windshield. Later the returned to the dwelling where the women had remained and brought them to Charleston, and they arrived in front of the restaurant on Lee Street about nine thirty o'clock that morning. A short time afterwards the plaintiff went to a hospital in Charleston where she consulted a doctor and was treated for her injury. She remained at the hospital for a period of seven ays. For a period of about three months she was required to wear a cast which extended from her shoulders to her hips and she was unable to return to her work until sometime in September, 1946, about nine months after the accident. At the trial in March, 1947, she still suffered from pain in her back.
The plaintiff and her companion testified that, on the trip from Charleston to Spencer, Withrow drove the taxicab at a speed of thirty five to forty miles per hour, that the taxicab skidded three or four times, and that each time the plaintiff protested the speed at which he was driving she told him that if he did not reduce the speed she would get out. They also testified that on the return trip, between Spencer and Clendenin, a distance of about thirty miles, he drove at a speed of from fifty to sixty five miles per hour, that the taxicab slipped and...
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