Moore v. Skyline Cab, Inc.

• Decision Date: 06 June 1950
• Docket Number: No. 10186,10186
• Citation: 59 S.E.2d 437,134 W.Va. 121
• Court: West Virginia Supreme Court
• Parties: MOORE, v. SKYLINE CAB, Inc., et al.

Page 437

59 S.E.2d 437

134 W.Va. 121

MOORE, v. SKYLINE CAB, Inc., et al.

No. 10186.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 7, 1950.

Decided March 21, 1950.

Rehearing Denied June 6, 1950.

Syllabus by the Court

1. The violation of an ordinance is not negligence as a matter of law, but is prima facie actionable negligence when it is the proximate cause of an injury.

2. When the material facts bearing upon the question of contributory negligence are undisputed and reasonable men can draw but one conclusion from them the question of contributory negligence is a question of law for the court.

Salisbury, Hackney & Lopinsky, Charleston, Samuel D. Lopinsky, Charleston, John G. Hackney, Charleston, for plaintiffs in error.

Dayton, Campbell & Love, Charleston, Ernest H. Gilbert, Jr., Charleston, Thomas W. Moses, Charleston, for defendant in error.

HAYMOND, Judge.

Early in the morning of Sunday, August 8, 1948, Stanley Ferrari, a young married man and the father of three small children, was fatally injured in a collision between an automobile driven by him and a taxicab, owned by the defendant, Skyline Cab, Inc., and operated by its employee, the defendant Lewis Hissom, at the intersection of Court Street and Virginia Street, two public thoroughfares, in the City of Charleston, Kanawha County. In an action for wrongful death, instituted by the plaintiff, Forest W. Moore, administrator of the estate of Stanley Ferrari, in the circuit court of that county, the jury returned a verdict against both defendants for $10,000.00, upon which the court entered the judgment of which the defendants complain on this writ of error.

The decedent Stanley Ferrari, who was regularly employed on night shift at the Nitro plant of the Monsanto Chemical Company, did not work at his employment on August 7, 1948. Shortly before eight o'clock in the evening of that day he left his home, outside the City of Charleston, ostensibly for the purpose of going to his work that night at the plant, accompanied by his cousin, Estil McClanahan, in Ferrari's automobile. Instead of going to his work at Nitro, Ferrari and his companion stopped at two resorts in Charleston where intoxicants were sold and where they spent their time until shortly before the wreck in which Ferrari was fatally injured occurred, sometime between two o'clock and four o'clock the following morning. At the places at which they stopped Ferrari's companion drank enough to become somewhat intoxicated but, other than the presence of some bottles of beer in his automobile after the collision, there is no indication that Ferrari drank any intoxicants at any time. After they left the second place at which they had stopped and immediately before the wreck, Ferrari drove his automobile, in which his companion was riding in the front seat, south on Court Street, which extends to Kanawha Boulevard and crosses at a right angle Virginia Street, a main thoroughfare, which runs east and west in the city. While proceeding in a southerly direction across Virginia Street toward Kanawha Boulevard, the Ferrari automobile and the taxicab driven by Hissom, which was traveling east on Virginia Street, collided near the center of the intersection of the two streets. The front end of the taxicab struck the right side of the automobile at its front door and caused it to turn on its left side and come to rest a short distance from the southeast corner of the intersection. Neither occupant of the Ferrari automobile was injured by the impact of the automobiles. The driver of the taxicab and a deputy sheriff, who was near the southwest corner of the intersection when the collision occurred, went to the automobile and succeeded in getting Ferrari's companion, who had been riding on the right side of the front seat, from the automobile, which caught fire almost immediately after the automobiles came together. They were unable to extricate Ferrari from the lower or left side of the automobile before he received the burns from which he died in a hospital shortly after the accident. At the time of the collision the traffic light at the intersection was not burning and there was no traffic in or near the intersection except the two automobiles involved in the wreck. The headlights on both automobiles were burning at the time, but the lights on the Ferrari automobile were dim. The intersection at which the collision occurred is in the 'congested district' of the city and, by a section of a municipal ordinance which was introduced in evidence, the speed of vehicles in that area is restricted to fifteen miles per hour.

On the northwest corner of the intersection is a building which extends to the building line of each of the streets. The first story of this building is occupied by a drug store and there is a large glass window fronting on each street. The location of the building obstructs the view west on Virginia Street of the driver of an automobile as it approaches the intersection from the north on Court Street until the automobile reaches the entrance to the intersection. Directly across Court Street from the drugstore and at the northeast corner of the intersection is an automobile service station which sets back from the building lines of the lot and the vacant portion of the lot affords a view east along Virginia Street to the driver of an automobile approaching the intersection on Court Street from the north. On the southeast corner of the intersection is the Charleston City Hall and, opposite this building, on the south west corner of the intersection, is the Kanawha County Court House. There is a traffic light at the intersection, but there are no stop signs on Court Street at the entrance to the intersection.

As to the speed at which each of the automobiles was traveling at the time of the collision and just before it happened, the evidence is in sharp conflict. Four eye witnesses testified at the trial. One of them, a deputy sheriff, testified in behalf of the plaintiff. The other three, the defendant Hissom, who was driving the taxicab, a woman passenger in the taxicab, and the man who was riding with Ferrari, testified as witnesses for the defendants. Two other persons who did not see the collision, but heard it and saw either the taxicab or the Ferrari automobile shortly before it happened, also testified.

A witness for the plaintiff, a city police officer, testified that about three o'clock in the morning, and a short time before the collision, he drove a patrol car south on Court Street to the intersection; that he was on his way to the city building; that when he reached the entrance to the intersection he stopped, looked west on Virginia Street, and saw a taxicab traveling east at a point twenty to thirty feet west of the west end of the city block on his right; that the speed of the taxicab at that point was twenty to twenty five miles per hour; that there was no automobile behind his automobile and no traffic on Court Street south of the intersection or on Virginia Street east of the intersection; that because of the distance of the taxicab on Virginia Street to the west of the Court Street intersection with Virginia Street he drove upon the intersection, turned east on Virginia Street and entered an alley from Virginia Street to the city garage just east and at the rear of the city building; that after he had turned east on Virginia Street he heard the taxicab make a noise which 'sounded like a bucket' being dragged on the street; that when he had gone to the garage he heard someone cry 'Fire'; that he came through the city building to Virginia Street to the scene of the wreck and saw the Ferrari automobile on its side in the intersection with its wheels pointed south, and also observed the taxicab and the injured man who was taken in an ambulance to the hospital. This witness did not see the collision or the Ferrari automobile until after the collision had happened.

Another witness for the plaintiff, a deputy sheriff who saw the collision, testified that he came out of the front entrance of the court house about one hundred feet west of the Court Street intersection and that he walked east along Virginia Street to the southwest corner of the intersection; that he saw the Ferrari automobile traveling south on Court Street as it approached the intersection; that it slowed down but did not stop and came into the intersection going south across Virginia Street; that he heard the noise made by the tires of the taxicab and noticed it coming east on Virginia Street; that he first saw it when it was near the intersection in the block west of the Court Street intersection; that the speed of the taxicab was from forty to sixty miles per hour; that the Ferrari automobile was traveling in low or second gear and was crossing the intersection when he first saw the taxicab west of him on Virginia Street; that the taxicab, when on the intersection, hit the Ferrari automobile which continued to run for 'about the length of itself' and then 'turned over'; and that the taxicab, after it struck the Ferrari automobile, 'bounced back' ten to twenty feet. This witness stated that he did not see the patrol car which the police officer testified he drove across the intersection shortly before the collision.

The defendant Hissom, the driver of the taxicab, testified that he went from his stand at Five Corners to Roane Street for a passenger who wanted to go to Darst Street in the eastern section of Charleston; that he drove with the passenger on Roane Street to Pennsylvania Avenue and then came into Virginia Street; that as he traveled east on Virginia Street he saw the patrol car enter the intersection from Court Street, proceed on Virginia Street, and turn into the alley just east of the city hall; that as he came to Court Street the Ferrari car came 'dashing right in front of me, just there before I knew how it got there, and so of course we had an accident'; that he had his ...