Mulroy v. Co-operative Transit Co., CO-OPERATIVE
| Decision Date | 13 November 1956 |
| Docket Number | CO-OPERATIVE,No. 10828,10828 |
| Citation | 95 S.E.2d 63,142 W.Va. 165 |
| Court | West Virginia Supreme Court |
| Parties | Anna MULROY v.TRANSIT COMPANY, a corporation. |
Syllabus by the Court.
1. The refusal to give an abstract instruction in not reversible error.
2. An instruction which is not sustained by the evidence should be refused.
3. A rebuttable presumption is not evidence of a fact but is purely a conclusion which has no probative force and is designed only to sustain the burden of proof until evidence is introduced which explains or overcomes it.
4. A person confronted with a sudden emergency which he does not create, who acts according to his best judgment or, because of insufficient time to form a judgment, fails to act in the most judicious manner, is not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances.
5. When the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties so that a verdict adverse to such party can not stand, the court should direct a verdict in his favor.
6. A verdict of a jury, which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court.
Gilbert S. Bachmann, Frank A. O'Brien, Sr., Wheeling, for plaintiff in error.
Goodwin, Spillers & Mead, C. Lee Spillers, Russell B. Goodwin, Wheeling, for defendant in error.
This is an action of trespass on the case instituted in the Circuit Court of Ohio County in which the plaintiff, Anna Mulroy, a married woman, seeks to recover damages from the defendant, Co-Operative Transit Company, a corporation, for personal injuries which the plaintiff alleges were caused by the negligence of the defendant. Upon the trial of the case in February 1955 the jury returned a verdict in favor of the plaintiff for $1,500.00. The circuit court overruled the motion of the defendant to set aside the verdict and grant it a new trial and by order entered June 24, 1955, rendered judgment against the defendant for the amount of the verdict, with interest and costs. To that judgment this Court granted this writ of error and supersedeas upon the petition of the defendant.
Shortly after seven o'clock in the evening of February 23, 1954, the plaintiff became a passenger for hire upon a bus owned by the defendant which at that time was operating between Wheeling, West Virginia, and Rayland, Ohio. The bus was approximately thirty nine feet in length and eight feet in width. It weighed about seventeen thousand pounds and was equipped with airbrakes. On each side of the interior and immediately behind the station of the driver there was a long front seat which was parallel with the side of the bus. To the rear of each of these long front seats were several rows of seats which were located at right angles to the side of the bus on each side of a center aisle which extended to the rear. The plaintiff entered the bus at Eleventh Street in Wheeling and her destination was Martins Ferry, Ohio.
The route followed by the bus passes over a bridge which spans that part of the Ohio River which flows between Wheeling and Wheeling Island. The length of the bridge is approximately 1,500 feet. The roadway of the bridge available for vehicular traffic is eighteen feet to twenty feet in width. From the east end of the bridge the roadway is level for a distance of about 500 feet and from that point it descends on a slight grade which apparently continues to the west end of the bridge. While the bus was travelling across the bridge in a westerly direction at a speed of ten miles to fifteen miles an hour and when it had reached a point about 300 feet from the west end of the bridge it was brought to an abrupt stop by the action of its driver in suddenly applying the brakes to avoid an oncoming automobile which approached the bus from the west end of the bridge at a speed of about twenty five miles an hour and which, in proceeding on its course without reducing its speed or stopping, narrowly missed striking the left side of the bus. The sudden application of the brakes caused the plaintiff, who was sitting next to the aisle on the first cross seat on the right side of the bus, to be thrown or jarred from the seat against a metal bar or guard rail and to fall upon the floor, and resulted in the injuries for which she sues. Her injuries consisted of several bruises and abrasions which produced pain and stiffness in her legs, her back, her left arm, and her right hip. She was able to leave the bus at Martins Ferry where she remained until later that evening when she was taken to her home in Wheeling in an automobile driven by a friend. The evidence, however, does not show that her injuries are permanent in character.
The plaintiff, who was sixty six years of age at the time of the trial, and two other passengers on the bus when it was brought to a sudden stop, testified in her behalf.
The plaintiff, who was sitting near the aisle on the first cross seat on the right side, stated that she was engaged in conversation with a lady who occupied the portion of the same cross seat near the side window of the bus; that she did not see any other vehicle in front of the bus; that she did not receive any warning that the bus was about to stop; that 'we stopped awful quick; it just seemed like he threw on his brakes and I went down and I hit my leg here on the one handle of the long seat and it turned me around and I fell on the floor this way and I hit my arm and my leg, and it hurt my back'; that a man who was sitting on the long seat in front of her helped her from the floor and placed her on the long seat; and that she continued to sit on that seat until she left the bus at Martins Ferry. She also testified that she got on the bus at Eleventh Street in Wheeling; and that she paid a fare of fifteen cents at Martins Ferry for her transportation to that place.
Marie Potts, another passenger who was sitting on the first cross seat on the left side of the bus, testified that when the bus was about half way across the bridge it stopped suddenly; that she saw two lights of an automobile travelling in the direction in which the bus was travelling; that she did not know whether it passed the bus but that she thought it did; and that when the bus stopped she was thrown 'down on one knee'.
Harriet Lynch, another passenger who was riding on the long seat on the left side of the bus immediately in front of the cross seat on which Marie Potts was sitting, testified that while the bus was crossing the bridge the brakes were used and the bus stopped suddenly; that 'everyone was pitched forward'; that she slid forward on the seat; and that her elbow was slightly injured. She also testified that before the brakes were applied she did not see any lights of any other vehicle; that she did not receive any warning that the bus was about to stop; that when the bus had stopped she saw an object immediately in front of it which 'looked like a truck'; that it appeared that 'we were smack up against a blank wall'; and that when the bus stopped the object ahead was from two to five inches in front of the bus.
The driver of the bus, Paul G. Briggs, and six of its passengers were called as witnesses by the defendant.
The driver, who had been employed by the defendant for a period of about eight years, testified that he was operating the bus across the bridge at about seven twenty o'clock in the evening of February 23, 1954; that the speed of the bus was about ten miles per hour; that while the bus was descending the grade of the roadway he saw an automobile approaching from the west end of the bridge; that when he first saw the automobile it was about 750 feet in front of the bus; that at that time there was no other vehicle in sight either in front of the bus or behind it; that the oncoming automobile was then in its right traffic lane; that its speed was about twenty five miles per hour; that when it was about fifty two feet from the bus it swerved to its left and into the traffic lane of the bus directly in front of it; that to avoid a collision he sounded the horn and applied the brakes and caused the bus to stop suddenly; that the bus was stopped within five or six feet from the point at which he applied the brakes; that the automobile swerved to its right and passed without striking the bus; that the bus had stopped when the automobile passed it; that when it passed the bus the automobile was only about two inches from the left side of the bus; that it passed the bus without reducing it speed and proceeded on its way; that when the bus had stopped the tire on its right front wheel was against a railing on the right side of the roadway; that the plaintiff was 'down on one knee' when the bus stopped; that one of the passengers helped her to a seat; that the bus proceeded to a point beyond the west end of the bridge where it was stopped and the witness gave each passenger an accident report card; that the bus then proceeded on its route; and that the plaintiff left the bus without assistance at Martins Ferry.
Patrick J. Hennessey, a passenger who was seated near the window on the third right cross seat, testified that as the bus approached the west end of the bridge the driver 'hit his brake hard' and brought the bus 'to a dead stop;' that the witness looked forward and saw another automobile approaching from the island end of the bridge; that the automobile 'was stradling the center line and he cut to his right, just missed the left front end of the bus, went by the bus and high-tailed it over the bridge.'; and that when the witness first saw the automobile it was about fifteen feet from the front end of the bus.
Walter John Plecha, another passenger who was seated next to the window on...
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