Meyn v. Dulaney-Miller Auto Co.
| Decision Date | 03 April 1937 |
| Docket Number | 8465. |
| Citation | 191 S.E. 558,118 W.Va. 545 |
| Parties | MEYN v. DULANEY-MILLER AUTO CO. et al. |
| Court | West Virginia Supreme Court |
Submitted February 9, 1937.
Rehearing Denied June 23, 1937.
Syllabus by the Court.
1. In this action, the plaintiff recovered a judgment for damages for personal injuries incurred by him as the result of having been run over by the defendant company's automobile then being driven by one Scanlon. Scanlon was in charge of, and also a salesman in, the defendant company's used car department. He was paid a salary to operate the used car department and commissions on sales made both by him personally and by other salesmen. He had the right to sell used cars, including the car in which he was driving at the time of the accident, at all times of the day or night although regular hours of employment were between eight A. M and nine P. M. He also had the right to use the car in question for the company's business and his own pleasure and by custom, he used said car in going to and returning from work. After "a frolic of his own," which terminated after regular working hours, he drove to the used car department for the purpose of inspecting it, though he was not ordered to do so, and on the way to his home ran into the plaintiff. Held, (1) in such case, the said Scanlon was the agent or employee of the defendant automobile company and not an independent contractor; and (2) whether or not at the time of the accident he was acting within the scope of his employment is a question of fact which the trial court properly submitted to the jury.
2. Greaser v. Appaline Oil Company, 109 W.Va. 396, 155 S.E. 170. The right to control, and not the exercise of control, is the test.
3. A pedestrian crossing a street between street crossings in violation of an ordinance is not necessarily precluded from recovery. His violation of the ordinance is prima facie negligence, but to preclude recovery it must naturally and proximately result in his injury. This latter question is clearly within the province of the jury to solve.
4. Syllabus 1 of Smith v. Gould, 110 W.Va. 579, 159 S.E. 53, 92 A.L.R. 28, amplified. The last sentence of that point of the syllabus should be taken to mean that a negligent plaintiff, oblivious of impending danger, may nevertheless recover for injuries, where the defendant knew of the plaintiff's situation, and, under the circumstances, in the exercise of reasonable care, should have realized the plaintiff's peril, and, on such realization, could have avoided the injury.
5. "A bad instruction is not cured by the giving of a good one." State v. Garner, 97 W.Va. 222, 226, 124 S.E. 681; syllabus 2, Liston v. Miller, 113 W.Va 730, 169 S.E. 398.
6. A declaration, containing a single count, the allegations of which proceed upon the double theory that (1) plaintiff's injuries were the result of the sole negligence of the defendant, the plaintiff being free of negligence; and (2) that defendant was negligent because of the application of the last clear chance doctrine, is not demurrable under Code, 56-4-37. Under this section of the Code, the common-law defect in pleadings known as duplicity is not now a valid ground for demurrer in this state.
7. A stipulation made in open court to the effect that expert medical witnesses shall not testify as to their opinions in the presence of other expert witnesses is waived by opposing counsel placing on the witness stand as his own witnesses medical experts who were present and heard the opinion testimony of other expert witnesses.
Error to Circuit Court, Ohio County.
Action by Walter M. Meyn against the Dulaney-Miller Auto Company and another. Judgment for plaintiff, and defendants bring error.
Reversed, and new trial awarded.
Erskine, Palmer & Curl, of Wheeling, for plaintiffs in error.
Handlan, Garden & Matthews, and Lester C. Hess, all of Wheeling, for defendant in error.
This is an action at law of trespass on the case instituted by Walter M. Meyn against the Dulaney-Miller Auto Company, a corporation, and Bart Scanlon, to recover damages for personal injury growing out of an automobile accident. To a judgment based on a verdict in the amount of $28,000, rendered in favor of the plaintiff and against both defendants, the defendants obtained this writ of error.
About 11:55 p. m., July 13, 1934, the plaintiff was struck and injured by an automobile driven by the defendant Scanlon and owned by the defendant Dulaney-Miller Auto Company. The accident occurred on Market street, one of the main streets in the city of Wheeling, between Twelfth and Eleventh streets. At the time of the accident, the plaintiff, according to his own story, was proceeding across Market street from the easterly to the westerly pavement in a diagonal direction at an angle of about thirty degrees north of west. At this place, there was no crosswalk. The traffic ordinances then in force in the city of Wheeling provided:
"(a) Pedestrians shall cross streets at crosswalks or at end of block; and where there is no traffic officer, traffic light or other traffic controlling device, and where full view of the crosswalk is not obscured from the view of the on-coming vehicular tramc, the pedestrian shall have the right of way; provided, however, that this right is restricted to mean that the pedestrian shall exercise all due precaution in crossing and be heedful of the difference in distance covered by a mechanical-driven vehicle and a pedestrian in the same period of time.
(b) Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right-of-way to vehicles upon the roadway, provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians." The Dulaney Company was engaged in the business of selling automobiles, new and used. Scanlon was in charge of, and also a salesman in, the company's used car department. He was paid a salary of $100 per month to operate the department, with commissions of 2 per cent. on sales made by him personally, and 1 per cent. on sales made by salesmen under him. He could sell used cars, including the car in which he was driving at the time of the accident, at all times of the day or night, although his regular hours of employment were between 8 a. m. and 9 p. m. The used car department, according to custom, closed at 9 p. m. This department was located at the defendant company's regular place of business at Twenty-Third and Market streets, a number of blocks directly south of the place of the accident. Scanlon had the right to use the car in question in going to, and returning from, his work. He also had the right to use it and other used cars for his company's business and his own pleasure. However, he was expected to purchase his own gasoline when he used such cars for pleasure. At the time of the accident, Scanlon lived in the "Out the Pike" section of Wheeling, a residential section some distance from the defendant company's location, the place of accident being on the route between the company's place of business and Scanlon's home.
On the night in question, Scanlon used the car to attend a Shriners' picnic at Wheeling Park. From Wheeling Park, he took two young women, whom he met there, to their homes in Martin's Ferry, and then returned to the Washington Restaurant in Wheeling, which restaurant is situated on Market street a short distance south of the place of accident. He left the restaurant about 11:30 p. m., and drove south on Market street in a direction opposite from his home to the street in front of the Dulaney Company's place of business for the purpose of assuring himself that the used cars belonging to the company had been removed from the street to their proper place of storage for the night. While there, he did not leave the car, but satisfied himself by a view from the driver's seat. After he had assured himself, he drove north on Market street toward his home, and, incidentally, to the place of accident.
From its intersection with Twelfth street to a point some distance north of the place of the accident, Market street has an even width of approximately 37 1/2 feet. It has sidewalks on each side, having a width of about 13 1/2 feet. Approximately in the center of Market street at the place where the accident occurred there was a street car track. The eastern rail of this track was about 16 1/2 feet west of the eastern curb of Market street. On the west, the track was double rail. The distance, as shown by the map in evidence, from the northerly intersection line of Twelfth and Market streets to the place where the plaintiff's body was found immediately after the accident is approximately 140 feet, and to the place where the plaintiff testified he was struck by the defendant's car, 120 feet. Although Market street is a busy street of the city of Wheeling, it appears from the record that at the time of the accident the traffic was light.
The plaintiff testified that, when struck, he was proceeding across Market street from the easterly to the westerly pavement in a diagonal direction at an angle of about thirty degrees; that he was proceeding in a northwesterly direction and therefore had his back slightly to northbound traffic; that he looked south as he stepped off the curb to see about the traffic light at Twelfth and Market streets, and found it red for north and south...
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