Miller v. Blue Ridge Transp. Co.
| Decision Date | 10 June 1941 |
| Docket Number | 9157. |
| Citation | 15 S.E.2d 400,123 W.Va. 428 |
| Parties | MILLER v. BLUE RIDGE TRANSP. CO. et al. |
| Court | West Virginia Supreme Court |
Terence D. Stewart and Ezra E. Hamstead, both of Morgantown, for plaintiff in error.
Alfred R. Putnam and L. T. Eddy, both of Fairmont, for defendant in error.
The plaintiff, Violet Miller, instituted this action in the Circuit Court of Marion County against the Blue Ridge Transportation Company, a corporation, White Star Lines Inc., and Penn Bus Company, a corporation, comprising, and doing business under the trade name of, "Blue Ridge Lines", to recover damages for alleged personal injuries sustained while a passenger on a motor bus operated for hire by defendants between Pittsburgh, Pennsylvania, and Fairmont West Virginia. To a judgment in the amount of $7,725, entered on a jury verdict in plaintiff's favor defendants prosecute this writ of error.
The declaration alleges, in substance, that the defendant corporations comprise, and do business under the trade name of, "Blue Ridge Lines"; that on February 25, 1940 and for a long time prior thereto, defendants were the owners and operators of certain motor busses for hire from Pittsburgh, Pennsylvania, through Morgantown to Fairmont, West Virginia; that on said day, plaintiff became a passenger for hire on one of defendants' busses for the purpose of being carried from Pittsburgh to Fairmont; that the defendants negligently and carelessly operated the bus, in which plaintiff was riding, at an excessive rate of speed, to-wit, at fifty miles per hour, over an uneven, rough and bumpy portion of, or break in, the highway, thereby causing said bus to lurch and jump in such a violent manner that plaintiff "was thrown from her seat and against the seats in front of her and against the sides of said bus," and that as a result of said negligent operation of the bus plaintiff was painfully and permanently injured, prevented from performing her usual occupation as a housekeeper for about six weeks, and caused to suffer an abortion or miscarriage and expend sums of money in an endeavor to regain her health.
On the morning of the day of the alleged injury, plaintiff and a companion, a Mrs. Coleman, purchased round-trip tickets to Pittsburgh. These tickets, according to the legend thereon, were issued by "Blue Ridge Lines comprising" the several corporate defendants. The bus, which they entered at Fairmont at 9:10 a. m., had painted on its sides "Blue Ridge Lines", and in smaller letters "White Star Lines". At 7:30 p. m., after a day in Pittsburgh, plaintiff and her companion boarded the same type of bus, returning, however, by a different route, through Uniontown, Pennsylvania, to Morgantown, and thence south through Rivesville to Fairmont. At Uniontown, one W. D. Ridgeley, known to Mrs. Coleman but not to plaintiff, got on the bus as a passenger.
To the south of Rivesville, according to plaintiff's evidence, there is a "bump" or sharp break, a "drop off of the concrete" extending across the highway and dipping toward Fairmont, due to an old slide. It is at this point that plaintiff claims to have received the injury upon which the instant action is based.
Plaintiff's witnesses testified that the bus was running at a speed of forty-five to fifty miles per hour at the time it struck the broken portion of the road; that the approach to this place was over smooth concrete for more than a half mile; that it was late at night and there was nothing to call the attention of the passengers to any impending peril or danger; and that as the bus went over the "bump" or break it was caused to lurch to the left and then to the right, throwing plaintiff with force against the back of the seat in front of her and then sideways. Plaintiff was sitting to the right of the center of the rear seat, which extended across the entire width of the bus. Mrs. Coleman was seated next to her, and Ridgeley occupied the seat to the left of the aisle and directly in front of the rear seat. Plaintiff testified that she immediately experienced a "catch", in the lower part of her back and leg, and the next day pain in her stomach. Both Mrs. Coleman and Ridgeley testified plaintiff held herself across the abdomen and back, and complained. When the bus arrived at Fairmont, Mrs. Coleman protested to the driver against the way he operated the bus. She testified further that plaintiff stumbled and appeared to be "in a faint" after alighting from the bus, and the driver inquired if plaintiff desired the services of a physician. Plaintiff then accompanied Mrs. Coleman to the latter's home, a short distance away, and shortly thereafter, took a taxicab home, where, her husband says, he assisted her into the house.
Mrs. Coleman visited plaintiff on the afternoon following the Pittsburgh trip, and remained with her that night and every night thereafter for about a month. On the day of her first visit, Mrs. Coleman accompanied plaintiff to the office of Dr. Paul Yost who had been plaintiff's physician from about 1935 until 1938, and during that period had treated her for female disorders. Dr. Yost testified that plaintiff complained of her back and stated she thought she had had a miscarriage; that he made only a cursory examination. This doctor stated that, because of the condition for which he had formerly treated plaintiff, she was unable to have a child.
Dr. Keister of Fairmont testified that on February 27, 1940, he was called to plaintiff's home, where he found plaintiff in bed, having uterus bleeding and paroxysmal cramps. From his examination on that occasion and the history which he obtained from plaintiff he was of opinion that plaintiff was threatened with an abortion, which he described as an interruption of pregancy at any time from conception to the end of three months. He further testified that he made no examination of plaintiff on the occasion of his first visit because of the danger of infection; that the next morning he received a telephone call to the effect that plaintiff was unable to come to his office, as he had requested; and that he then visited plaintiff at her home, made a vaginal examination, noticed bleeding, softness of the cervix, which he said was indicative of pregnancy. Thereafter, he treated her every few days until some time after March 20, 1940; that on March 21, 1940, he was again called to plaintiff's home, made an examination, found the mouth of the womb open and bleeding, and noticed an unusual odor, which witness stated led him to believe that a dead foetus had been expelled. His opinion that plaintiff had lost a foetus was based upon the fact that on his second visit he found plaintiff's uterus enlarged, soft and bleeding, and that on March 21, 1940, following the alleged abortion, the uterus had materially reduced in size and there was an odor of decomposed tissue.
Both plaintiff and Mrs. Coleman testified that on March 20, 1940, plaintiff's illness became acute, and about nine o'clock in the evening, she was delivered of a foetus, which looked like a piece of meat, being about three inches long and one-half inch wide; that Dr. Keister was called but was not available; and that Mrs. Coleman disposed of the foetus shortly thereafter.
In contradiction of Dr. Yost's statement that, because of plaintiff's condition, she was unable to have a child, plaintiff and her husband testified that a child, Doris Jean Miller, was born to them in 1936 at Fairmont. They stated that this child died in 1938 at the home of Mrs. Miller's father in Jefferson County, Pennsylvania, and was buried there. However, this evidence is clearly rebutted by the testimony of the county clerk of Marion County, West Virginia, the custodian of vital statistics in Jefferson County, Pennsylvania, the secretary and manager of the cemetery in which the child is supposed to have been buried, and, in particular, by the testimony of Dr. Yost, who testified he treated the plaintiff a short time before plaintiff claimed the child was born, and that plaintiff at that time was not pregnant.
In support of their position that the trial court should have granted their motion to set aside the verdict and grant a new trial, defendants assign a number of grounds of error. For convenience, they will be discussed seriatim as they appear in the briefs.
In the first place, they contend that plaintiff's declaration and the proof in support do not establish a joint liability against defendants. Reliance is had upon Farley v. Crystal Coal & Coke Co., Pt. 2, Syl., 85 W.Va. 595, 102 S.E. 265, 9 A.L.R. 933. In that case, however, a plaintiff riparian owner undertook to establish joint tort liability against a number of defendant coal companies based upon their wholly independant action without concert, collusion or common design in polluting a stream passing through his property. The instant declaration and record disclose that defendant corporations were engaged in the joint enterprise of operating busses for hire. The ticket which Mrs. Miller claims was sold to her showed that the three defendant corporations were doing business under a common trade name. The bus itself was labelled with that trade name, and though the particular bus may have belonged to the defendant, White Star Lines, Inc., there is nothing in this record to offset the evidence that the three corporations were engaged in the common enterprise of maintaining the bus mentioned here, together with other busses for the transportation of passengers for hire. Under the circumstances we think defendants' first assignment of error does not prompt a reversal of the trial court's judgment.
Defendants say that plaintiff's evidence is not worthy of belief, and that courts are not required to believe that which is...
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