Laphew.,v,consolidated Bus Lines Inc., Et Al.

• Citation: 55 S.E.2d 881
• Decision Date: 18 October 1949
• Docket Number: No. 10156.,10156.
• Court: Supreme Court of West Virginia
• Parties: LAPHEW. v CONSOLIDATED BUS LINES, Inc., et al.

55 S.E.2d 881

LAPHEW.vCONSOLIDATED BUS LINES, Inc., et al.

No. 10156.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1949.

Decided Oct. 18, 1949.

David Graham Laphew sued Consolidated Bus Lines, Inc., and another, for injuries sustained when a bus in which plaintiff was a passenger grazed a power pole in an attempt to avoid a collision with an on-coming automobile on wrong side of highway.

The Circuit Court of McDowell County set aside a jury verdict in plaintiff's favor and awarded a new trial to defendants and plaintiff brought error.

The Supreme Court of Appeals, Riley, J., reversed the judgment and held that the evidence authorized a verdict in plaintiff's favor.

Fox, J., dissented.

Syllabus by the Court

1. Where, in an action at law to recover damages for personal injuries, the jury has found for plaintiff on conflicting evidence, the trial court, in the consideration of a motion to set aside a verdict in favor of plaintiff should "entertain every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, and assume as true those facts which the jury may properly find under the evidence." Adkins v. Raleigh Transit Co., 127 W.Va. 131, 135, 31 S.E.2d 775.

2. Where the relation of common carrier and passenger exists, the carrier owes to the passenger the duty to use the highest degree of care compatible with the practical operation of a vehicle.

3. "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." Pt. 2 Syl., Isabella v. West Virginia Transportation Co., W. Va., 51 S.E.2d 318.

4. A rebuttable presumption is not evidence of a fact; it has no probative force; and it is designed only to sustain the burden of proof until evidence is introduced tending to overcome it.

5. A person confronted with a sudden peril or emergency will be held responsible only for such acts or omissions which an ordinary prudent person would have avoided in such peril or emergency.

W. H. Ballard, Welch, S. H. Ballard, Peterstown, for plaintiff in error.

B. F. Howard, Welch, for defendants in error.

RILEY, Judge.

In this action of trespass on the case, brought in the Circuit Court of McDowell County by David Graham Laphew against Consolidated Bus Lines, Inc., and Fred Murphy, its employee-bus operator, to recover damages for injuries sustained by plaintiff while riding as a passenger for hire on the bus of defendant bus company, operated by the defendant, Fred Murphy, from Welch, West Virginia, where plaintiff boarded the bus, to Coalwood, West Virginia, plaintiff's destination. Plaintiff prosecutes this writ of error to an order of the said circuit court setting aside a jury verdict in plaintiff's favor in the amount of five thousand dollars, and awarding a new trial to defendants.

For convenience, David Graham Laphew will be referred to herein as "plaintiff"; Consolidated Bus Lines, Inc., as the "bus company"; and Fred Murphy as the "defendant's employee" or the "bus driver".

The declaration alleges that the bus company, at the time of the alleged injuries, was a common carrier of passengers for hire and reward by motor vehicles, commonly referred to as busses, from Welch, in McDowell County, over, along and upon United States Highway No. 52, in a southerly direction to Coalwood in the same county; that the defendant's employee was the servant, agent and employee of the bus company, engaged in operating the bus upon which plaintiff was injured; that plaintiff at the time he was injured was a passenger for hire on a bus travelling from Welch to his home in Coalwood; that it was the duty of the bus company and its employee to operate, and cause to be operated, the bus with due care and caution, so that plaintiff could be safely carried by the bus to his destination; that notwithstanding such duty, the defendants negligently and carelessly "suffered" the side of the bus on which plaintiff was then and there riding as a passenger to come in violent contact with an electric power pole erected on the west side of the road as the bus travelled in a southerly direction along United States Highway No. 52, within the City of Welch; and that as a result thereof plaintiff was severely, painfully, and permanently injured, suffered mental pain and anguish, and was required to expend, and did expend, a large sum of money in and about his endeavor to be healed of said injuries.

In support of their position that the trial court properly set aside the jury verdict, the defendants say: (1) There is no evidence of negligence on the part of defendant's employee, the bus driver; (2) that the proximate cause of the plaintiff's injuries was the negligence of the driver of an automobile approaching the bus company's bus in an opposite direction, partly on the wrong side of the street, which crowded the bus to the westerly curb, causing it to come in contact with a pole of the power company negligently installed inside the curb of the western pavement of the street, in such manner as to encroach upon the paved portion of the street and to obstruct the free passage of vehicular traffic thereon; and (3) that the physical facts conclusively show that plaintiff was seated in the bus with his arm protruding from the window, when the bus grazed the pole, and, therefore, plaintiff is precluded from recovery on the theory that he was guilty of contributory negligence.

In view of the trial court's action in setting aside the jury verdict in plaintiff's favor, we are necessarily guided by the same rule which governs the appraisal of a directed verdict, where, as here, in the essential particulars, the evidence of the plaintiff and of the defendant conflicts. In Adkins v. Raleigh Transit Co., 127 W.Va. 131, 135, 31 S.E.2d 775, 777, this Court held: "In view of the jury's resolving this conflict in plaintiff's favor, we must, in the appraisal of this case, as every trial court should do in the consideration of a motion for a directed verdict [or a motion to set aside a verdict], entertain every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, and assume as true those facts which the jury may properly find under the evidence." To the same effect see Hambrick v. Spalding, 116 W.Va. 235, 179 S.E. 807; Fielder, Adm'x v. Service Cab Co., 122 W.Va. 522, 11 S.E.2d 115; Boyce v. Black, 123 W.Va. 234, 15 S.E.2d 588; Wilson v. Co-operative Transit Co., 126 W.Va. 943, 945, 30 S.E.2d 749.

Guided by this rule, we are at liberty to state the facts in the following manner:

On Saturday night, September 13, 1947, about eleven o'clock, plaintiff boarded the company's bus No. 150, as a passenger for hire at Welch for transportation to his home in Coalwood. At the time plaintiff was injured, he was seated in the second seat from the rear in the individual part of a double seat next to a window on the right side of the bus. The window was composed of two parts, a stationary part in the rear, and a sliding part which, when fully opened, left a space of ten to twelve inches wide. Plaintiff testified, without substantial contradiction, that the window beside him had been pulled back about half way to the stationary part; that at the time he was injured the part of his arm from his shoulder to his elbow was resting onthe window sill along the stationary part of the window, his right hand was resting on top of a box containing a topcoat, recently purchased, which brought his hand substantially on a level with the rest of his right arm.

The bus, as it was leaving Welch and was being driven in a southerly direction along Riverside Drive in that town, toward Coalwood along United States Highway No. 52, was greatly overcrowded. Though there were seats for only twenty-nine passengers, forty-five to fifty, or possibly more, passengers were being carried at that time. All of the seats were occupied; in at least one of the seats three passengers were seated, and the aisle was crowded from the front of the bus to a considerable distance in the rear. Four passengers were standing on the right of the driver, and one passenger, evidently due to the crowded condition of the bus, stood on the steps leading into the bus. The bus weighed thirteen thousand pounds, and, as most of the passengers were adults, if each passenger weighed on average of one hundred fifty pounds, the live bus-load would be seven thousand five hundred pounds, that is to say, that, as the bus proceeded along toward the place of the accident, it weighed, together with its passengers, twenty thousand five hundred pounds.

Shortly after the bus left the station in Welch, all the lights inside were turned off. It was travelling a short distance from the station along Riverside Drive in Welch at a speed variously estimated at fifteen to twenty miles an hour, and to the right of the center of the street, when it suddenly, without any warning, turned sharply to the right, evidently, as defendants claim, to avoid a collision with an oncoming automobile. Two of defendants' witnesses admit that the bus was suddenly turned to the right, and there is substantial evidence in this record to the effect that the sudden turning of the bus caused it, in its loaded condition, to sway or swerve at its rear end to the left, and then rebound to the right, where the right side of the bus hit the power pole, which was located seven and one-half inches from the outside of the curb to the right of the bus and leaned at an angle of two degrees and sixteen minutes toward the curb and street.

The bus driver admitted that he had travelled the highway many times, and knew that the pole...