Morrison v. Roush

• Decision Date: 28 April 1931
• Docket Number: No. 6943.,6943.
• Court: West Virginia Supreme Court
• Parties: MORRISON. v. ROUSH et al.

158 S.E. 514

MORRISON.
v.
ROUSH et al.

No. 6943.

Supreme Court of Appeals of West Virginia.

April 28, 1931.

[158 S.E. 515]

Error to Circuit Court, Cabell County.

Action by Frank L Morrison against Fred Roush and others. To review a judgment for the plaintiff, the defendants, other than Leo Volkenrath, bring error.

Reversed, and cause remanded for a new trial.

Scott, Graham & Wiswell, of Huntington, for plaintiffs in error.

T. W. Peyton, of Huntington, for defendant in error.

MAXWELL, J.

For personal injuries received in an automobile accident in the City of Huntington on the 26th of May, 1930, Frank L. Morrison obtained a verdict and judgment for $3,000.00 against Frank Roush, Grant Roush and Leo Volkenrath. The Roushes prosecute this writ of error.

Morrison and a companion were sitting on the outer running board of a car parked parallel to and against the south curb of Third Avenue in said city, awaiting the arrival of a bus. Where they were sitting was exactly opposite a street car safety zone, marked on the surface of the street by metal disks, for the protection of passengers using east bound cars. The distance from the south curb to the zone boundary was eighteen feet. The automobile upon which they were sitting was approximately six feet in width, leaving a space of about twelve feet between it and the safety zone. They had been there about five minutes when Fred Roush, driving a light truck belonging to Grant Roush, approached from the west. As the truck neared them at a moderate speed, Leo Volkenrath, driving a passenger automobile and coming up in the rear of the truck, attempted to pass it on the left, and, to avoid running through the safety zone where two people were standing, having alighted from a street car which had just stopped, he cut his automobile sharply to the right before it had entirely passed the truck. This resulted in the rear right bumper of Volkenrath's automobile becoming interlocked with the left end of the front bumper of the truck, thereby throwing the truck over and against the automobile where Morrison and his companion were sitting. Morrison was seriously injured; his companion escaped unharmed.

It is true that Morrison in sitting on the running board of the parked automobile was violating section 99, chapter 43, Code 1923, which makes trespassing upon the vehicle of another a misdemeanor. Clearly this statute was intended for the protection of private property and is in no sense a traffic regulation. The violation of that statute by Morrison at the moment of the injury does not bear on the question of contributory neg-

[158 S.E. 516]

ligence. The fact that Morrison had stationed himself six feet from the curb in a busy street might be considered contributory negligence, but the fact that he was sitting on the running board of another person's car, in violation of the above statute, cannot in itself be said to have constituted contributory negligence. We are therefore of opinion that the court properly refused Roush's instruction No. 4 which would have told the jury that the action of the plaintiff in sitting upon the running board of the automobile without the consent of the owner was illegal "and if by so doing he placed himself in a position of danger or hazard from passing automobiles and was injured by a car running on the Avenue, he cannot recover in this action."

The first point of error, in order of assignment, goes to the action of the trial court in overruling the demurrer of the Roushes to the fourth count of the declaration. The demurrer as to that count is predicated particularly upon the allegation therein that at the time he was hurt "plaintiff was sitting on the running board of a certain automobile, the same being then and there lawfully parked beside the south curb on Third Avenue?'' It is said that that allegation in itself discloses contributory negligence on the part of the plaintiff. If the...