Lunsford v. Cannon Ball Transit Co.
| Decision Date | 04 October 1932 |
| Docket Number | 7296. |
| Citation | 166 S.E. 19,112 W.Va. 586 |
| Parties | LUNSFORD v. CANNON BALL TRANSIT CO. et al. |
| Court | West Virginia Supreme Court |
Submitted September 27, 1932.
Syllabus by the Court.
Appellate court, on determining that verdict was properly set aside because of erroneous instruction, will not ordinarily review sufficiency of evidence.
Order setting aside verdict for erroneous instruction will not be disturbed unless appellate court can say that verdict was plainly and clearly right.
1. "On a writ of error to a judgment awarding a new trial the appellate court, after having ascertained that the verdict for the plaintiff was properly set aside for an error in the trial, other than refusal to direct a verdict for the defendant, if any, will not ordinarily enter upon an inquiry as to the sufficiency of the evidence to sustain the verdict returned and set aside." Browning v. Hoffman, 86 W.Va. 468, 103 S.E. 484.
2. "An order of the court below, setting aside a verdict for the error in giving such an instruction (allegedly harmless) will not be disturbed by the appellate court, upon the theory of harmlessness of the error, unless the latter court can see that the verdict was plainly and clearly right." Levine Brothers v. Mantell, 90 W.Va 166, 111 S.E. 501.
Error to Circuit Court, Mingo County.
Suit by Eugene Lunsford, infant, etc., against the Cannon Ball Transit Company and another. To review an order setting aside a verdict in favor of the plaintiff and directing a new trial, the plaintiff brings error.
Order affirmed.
J. M. Jordan, W. E. Whitt, and J. C. Cantrell, all of Williamson, for plaintiff in error.
Hogg & Crawford, of Williamson, for defendants in error.
The trial court set aside a verdict in favor of plaintiff for error in instructions and directed a new trial; and plaintiff prosecutes error.
The suit is for personal injuries to plaintiff and the declaration charges that on September 26, 1931, plaintiff, a child about three years old, was, of right, walking across a state road, route 82 in Pike county, Ky. and, while so walking, that one of the busses owned and operated by defendant through its employee Fife was driven on said road in a negligent, careless, and reckless manner so that it struck plaintiff, and permanently injured him. No demurrer was interposed. Defendant pleaded the general issue.
The accident occurred about 7 o'clock in the evening of September 26, 1931, at the eastern part of Sharondale where there were about eleven dwellings each approximately 37 feet from the road, five on the right side of the road as the bus traveled in the direction of Williamson, W. Va., and six on the other side, in the second of which plaintiff lived with his parents. The father of the child was on the right of the road, as the bus approached, immediately opposite his dwelling, talking to his neighbor, Elias Dotson, and there were three small boys on that side of the road near them and one of them rolled a tire or hoop across to the opposite side of the road as the bus approached; and, according to plaintiff's witness, Lilly Nix, who was sitting on her porch about 213 feet from the place of accident, barely got across the road ahead of the on-coming bus when plaintiff who was on the left side (the side of his residence), came up the bank onto the road and started across it and was struck by the bus; or, according to defendant's witness, ran into it as it passed. Plaintiff claims that the child was about 3 or 4 feet out on the hard surface when the bus was about 50 feet away, and was struck by the front part of the car; while defendant claims that the child came up the bank suddenly and ran into the side of the bus as it passed.
While the declaration does not charge any specific act of negligence, such as excessive speed, failure to give warning, failure to keep proper lookout for pedestrians or the like, the plaintiff's claim of negligence is that the child was out on the hard surface in time for the driver to have seen it and avoided hitting it had he kept a proper lookout, and that he was driving on the wrong, or left-hand side, of the road, there being no obstructions on the right side to prevent him from driving there. It appears that the road curves to the left as the scene of accident was approached by the bus, and was elevated by a fill about 3 1/2 feet high above the surface of the surrounding ground, and that looking from the place of accident toward the curve (from which bus approached) there was an unobstructed view of the road for a distance of about 375 feet.
The chief witness for plaintiff's theory was Mrs. Nix, who was sitting on her porch 213 feet away and whose attention was directed to the accident by the little boy rolling the tire or hoop across the road, and she was watching to see if he got across ahead of the on-coming bus. She says that the child had barely got across, when plaintiff attempted to cross in the opposite direction and had gotten out on the road 4 or 5 feet when the on-coming bus was about 50 feet away. It was "dusk dark," the headlights of the bus were on (although she did not remember that they were on), and she was looking from a distance of 213 feet or more towards the bus as it approached. The father, talking to Elias Dotson, had his attention attracted by hearing one of his boys yell: "Go back, Eugene." He testified that: The child's brother, Earle, asked to tell what he saw, testified:
Elias Dotson, a witness for defendant who was talking to the father and saw the accident, said the bus was 25 or 30 feet away when the child came "up from the ditch," and kept on coming; that the bus did not hit the child with the front part, or he would have seen it. "It was bound to have hit on the other side somewhere." The hard surface of the road was about 17 feet and about 4 feet of berm on each side. The bank up which the child came was about 3 1/2 feet high and the bank on the...
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