Malone v. Monongahela Valley Traction Co.

• Decision Date: 24 January 1928
• Docket Number: (No. 6054)
• Citation: 105 W.Va. 60
• Court: West Virginia Supreme Court
• Parties: Curtis T. Malone v. Monongahela Valley Traction Company

105 W.Va. 60

Curtis T. Malone

v.Monongahela Valley Traction

Company

(No. 6054)

Supreme Court of Appeals of West Virginia.

Submitted January 15, 1928.

Decided January 24, 1928.

1. Trial If There is Substantial Evidence on Either of Two Theories on Which Damages Are Sought, Defendant is Not Entitled to Peremptory Instruction.

If there be substantial evidence on either of two theories on which damages are sought, defendant is not entitled to a peremptory instruction in his favor; plaintiff is entitled to the verdict of the jury thereon, (p. 62.) (Trial, 38 Cyc. p. 1578.)

2. Carriers Street Railway Conductor Should Use Care Not to Start Car While Passengers or Licensees Whose Presence Should be Known Are Getting on and Off; Street Railroad is Liable for Injuries Inflicted by Conductor's Negligence in Starting' Car While Persons Are Getting on or Off; on Conflicting Evidence, Whether Street Car Conductor Started Car While Person Was Getting on or Off is Jury Question; in Husband's Action Against Street Railroad for Injuries to Wife, Evidence of Conductor's Negligence in Starting Car When Wife Was Getting Off Held to Present Jury Question.

It is the duty of a street railway conductor when stopping to take on passengers to use due care not to put the car in motion while persons are getting on or off the car, whether they be passengers, or be mere licensees, and whose presence is known or by the exercise of due care should have been known; and the railway company is liable for injuries inflicted by his negligence in failing to use such due care; and whether he has done so is a question of fact for the jury when there is conflict in the evidence, (p. 62.)

(Carriers, 10 C J. §§ 1365, 1462.)

3. New Trial Burden is on Party, Asking' New Trial for Juror's Incompetency, Constituting Good Ground for Challenge Before Trial, to Show Prejudice.

Where the motion for a new trial is based on the incompetency of a juror and for cause which would have constituted good ground for his challenge before trial, the burden is upon the complaining party to show that he has been prejudiced by the presence of such juror on the jury. (p. 68.)

(New Trial, 29 Cyc. p. 1008.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Marion County,.

Suit by Curtis T. Malone against the Monongahela Valley Traction Company. Judgment for plaintiff, and defendant brings error.

Ernest B. Bell, James A. Meredith, Henry S. Lively, for plaintiff in error.

Shaw & Shaw, for defendant in error.

Affirmed.

Miller, President:

The plaintiff, husband of "Wanda Malone, brought this suit to recover damages for alleged loss of "comfort, benefit, and society, services and assistance" resulting from alleged personal injuries sustained by her from the alleged negligence of defendant in causing her to be thrown from one of its cars when alighting therefrom at or near Main Street and Cleveland Avenue in the City of Fairmont, on February 1, 1922, and for which personal injuries she sued and obtained a verdict and judgment in the circuit court on November 8, 1926, for $4,500.00, subsequently reversed here for errors committed in the trial on November 1, 1927. 104 W. Va. 417, 140 S. E. 340.

The present ease is founded upon the facts in the former case, and the resulting injuries of which she complained.

The plea of defendant was the general plea of not guilty with specification of defenses demanded by plaintiff: First, that the said Wanda Malone at and immediately before her accident was a mere licensee upon said street car and was neither a passenger by invitation nor for hire, and was there without the knowledge of the defendant or of any of its servants, agents or employees in charge of the operation of said car; that while in the act of alighting therefrom, and after said car was in motion the said Wanda Malone stepped off said car and fell backwards on the pavement by reason of having attempted to alight therefrom in a direction opposite to that in which said car was slowly moving, and whereby alone she incurred the accident, and the defendant was guilty of no act of negligence causing the alleged injuries of which plaintiff complains.

Second, that the fall which the said Wanda Malone so sustained did not result in loss of comfort, benefit, etc., of the said Wanda, of which plaintiff complains in this action, from. February 1, 1922, to the date of the institution of this suit, nor for the twenty-five weeks immediately following the date of said accident, nor for the partial loss of said services for one hundred weeks next atfer the expiration of said twentyfive weeks, nor for the alleged loss of such services for alleged permanent injuries; nor was it guilty of any negligence resulting in any injuries for which doctor bills and other services were properly incurred.

On the trial of this case, as on the trial of Wanda Malone's case, the principal issue was whether there was any evidence, or such preponderating evidence, as justified the submission of the case to the jury on the fact of negligence, and the denial of defendant's proposed peremptory instruction to find for it, one of the errors here complained of.

On the fact of negligence the witnesses and the testimony were nearly the same as on the trial of Mrs. Malone's case. One witness for the plaintiff, Virginia Moon, the maid who accompanied Mrs. Malone to or upon the car that is alleged to have injured her, was not called as a witness on the trial of this case, nor so far as we can find in the record was her absence accounted for. On the other trial her evidence was substantially the same as that of Mrs. Malone and fully supported her as to the facts and circumstances of the accident. The defendant in accordance with its bill of particulars, as in the trial of the former case, sought to establish by its proof that when Mrs. Malone accompanied by her maid first came to the car, the maid got up on the steps on the left hand side of the rear platform where Brookover, the conductor, was standing, and that Mrs. Malone handed to the maid her young child, who took it in her arms and went inside the car, and when Mrs. Malone advised the conductor that she did not intend to become a passenger then and requested Brookover to look after the maid and child and put them off at the particular street nearest her home, he promised her he would; that she then left the car and proceeded back up Cleveland Avenue towards Main Street, and that Brookover immediately turned his attention to the passengers boarding the car on the right or opposite side of the car, helping them on, and that while so engaged Mrs. Malone, forgetting whether she had provided the maid with car fare and given her the key to her door, suddenly returned to the oar, and unobserved boarded and entered it, calling in to the maid from the door, and then likewise left, and after the car was put in motion got down on the step of the platform and stepped off backwards with the result indicated, and thereby negligently contributing to her injuries. Which of these versions of the occurrence be the correct one, we cannot say from the evidence. The conductor of the car is corroborated by the motorman of the car immediately following him and by two or three witnesses, ladies to whom they say Mrs. Malone described the accident the following day, and by one or two other witnesses present. Defendant's counsel say that the evidence, of these witnesses is so preponderating that the court should have so instructed the jury and directed a verdict for defendant. But the plaintiff's case does not wholly depend on whether Mrs. Malone entered the car in the first place as she contends or subsequently returned as defendant claims. If the latter, the defendant owed her the duty not to negligently or wantonly injure her. One of plaintiff's witnesses, Miss ...