Morton v. Baber, No. 8459.

• Court: Supreme Court of West Virginia
• Writing for the Court: MAXWELL
• Citation: 190 S.E. 767
• Docket Number: No. 8459.
• Decision Date: 30 March 1937
• Parties: MORTON . v. BABER.

190 S.E. 767

MORTON .
v.
BABER.

No. 8459.

Supreme Court of Appeals of West Virginia.

March 30, 1937.

[190 S.E. 768]Syllabus by the Court.

1. In an action for damages for alleged wrongful death of a pedestrian who stepped suddenly from behind a parked vehicle into the path of a moving vehicle on a highway and was killed, the jury should not be instructed on the doctrine of last clear chance unless there is appreciable evidence tending to prove that the operator of the moving vehicle saw, or, under the circumstances, In the exercise of reasonable care, should have seen, the peril of the decedent in time to avoid injuring him.

2. In the trial of a death accident case where, under the facts, there is no basis for the application of the last clear chance doctrine, it is not error to omit reference to that doctrine from binding instructions otherwise proper.

3. In the trial of a death accident case where the facts present no basis for the application of the last clear chance doctrine, there is no error in instructing the jury that there can be no recovery if negligence of the decedent, however slight, contributed proximately to his own injury. Such negligence contributes proximately to the injury, if, without it, the injury would not have resulted.

Error from Circuit Court, Nicholas County.

Action by W. E. Morton, administrator of the' personal estate of P. B. Knight, against J. Lewis Baber. To review a judgment granting plaintiff a new trial after return of a verdict for defendant, defendant brings error.

Reversed and rendered.

Emmet Horan, of Summersville, and Wolverton & Ayres, of Richwood, for plaintiff in error.

A. N. Breckinridge, of Summersville, F. N. Bacon, of Fayetteville, and John L. Detch, of East Rainelle, for defendant in error.

MAXWELL, Judge.

This is an action of W. E. Morton, administrator of the personal estate of P. B. Knight, deceased, against J. Lewis Baber for damages for the alleged wrongful death of plaintiff's decedent, who was killed by defendant's truck. A verdict in favor of the defendant was set aside by the trial court and the plaintiff granted a new trial. To that judgment, the defendant was awarded writ of error.

At the time of the accident, defendant's one and one-half ton truck was being operated by his employee, Walter Watts. The accident occurred between ten and eleven o'clock, the morning of November 9, 1934, in Nicholas county, on state route 94, near Curtin Bridge, and directly in front of Simeon Spencer's residence. At the place of accident the highway parallels Cherry river, and for a distance of about nine hundred feet east, in the direction of Richwood, and approximately six hundred feet west, toward Curtin Bridge, the highway is straight. The Spencer home is about one hundred feet from the south side of the road and on an elevation of ten feet above the road level. Deceased resided on the opposite side of Cherry river and was accustomed to cross the river at Spencer's. Some member of the Spencer' household usually acommodated the deceased and his wife by taking them across the river in a small boat. They could reach their home from the highway by a more circuitous course--going farther up stream in the direction of Richwood and crossing a railroad bridge.

On the morning of the accident, deceased and his wife had been to a mill near Curtin Bridge and were returning to their home, following their accustomed route. They stopped directly across the road from the Spencer home, placed their bags of merchandise on the berm about six feet from the north edge of the hard surface, and Mrs. Knight crossed the road and went to the Spencer home for the purpose of making inquiry as to the illness of Mrs. Spencer, and further, to solicit assistance in crossing the river. She remained at Spencer's about five minutes, and before leaving, was informed that none of the men of the family were there, and that it would be unsafe for a woman to attempt to put the boat across the river.

While deceased was waiting for his wife to return, Ed Ford, driving a road roller east on the highway, stopped the roller on the south side of the highway immediately across from where deceased was standing. The highway is sixteen feet wide and the roller was eight feet wide, fourteen feet long and six feet high.

Upon his wife's return to where the bags had been placed, deceased crossed the road to the south side, and standing on the ground directly behind the middle of

[190 S.E. 769]

the rear end of the roller, engaged in conversation with Ford. The latter informed the deceased that he (Ford) would carry the bags of merchandise on the roller to the railroad bridge. Whereupon, deceased turned and started back to the other side of the road where his wife was standing, and after taking two or three steps in that direction, was struck in the head and killed by the left front corner of the bed of defendant's truck, traveling west (toward Curtin Bridge).

On the foregoing matters, there is no dispute.

In charging negligence against the defendant, the plaintiff alleges that the truck was traveling on the south side of the middle of the road; that its speed was excessive, and that the driver failed to sound a warning as the truck approached the roller.

There is some conflict in the evidence with respect to how much of the roller rested on the hard surface; the estimates vary from eighteen inches to half the width of the road. That about three or four feet o'f the width of the roller rested on the hard surface, seems to be the perponderating testimony on that point. Also, some variance appears respecting the exact position on the road the body of deceased lay after he was struck. But it seems clear that the body was lying about the middle of the hard surface and 15 to 20 feet from the rear of the roller. Further, there is difference in estimate as to the distance the truck traveled beyond the roller before the truck was stopped. A fair conclusion is that Walter Watts, driver, brought the truck to a stop on the north berm of the road about 60 feet from the roller.

Respecting the more sharply controverted...