Nola Clise v. John Prunty

• Decision Date: 19 April 1932
• Docket Number: (No. 7046)
• Citation: 112 W.Va. 181
• Parties: Nola Clise v. John Prunty
• Court: West Virginia Supreme Court

112 W.Va. 181

Nola Clise

v.John Prunty

(No. 7046)

Supreme Court of Appeals of West Virginia.

Submitted March 30, 1932.

Decided April 19, 1932.

1. Automobiles

Under the laws of Pennsylvania the owner or operator of an automobile must exercise ordinary care for the safety of a guest passenger.

2. Same

Under the laws of Pennsylvania if the undisputed facts show that an injury to a guest in an automobile was accidental, and without negligence, liability should not be imposed merely because of the injury.

3. Judgment New Trial

"Where the court comes to the conclusion that the evidence in a civil case is not sufficient to justify the verdict of the jury, a judgment non obstante veredicto should not be rendered, unless the merits of the case as disclosed by the pleadings justify such judgment, but a new trial will be granted upon motion of the party adversely affected by such verdict." Gray v. Railway Co., 99 W. Va. 575, 130 S. E. 139.

Error to Circuit Court, Marion County.

Action by Nola Clise against John Prunty.

Judgment for the plaintiff, and the defendant brings error.

Reversed and remanded.

Russel L. Furbee and C. Brooks Deveny, for plaintiff in error.

Victor H. Shaw, for defendant in error.

Maxwell, Judge:

Defendant prosecutes this writ of error to a judgment of the circuit court of Marion County predicated on a verdict for $8,000 against him and in favor of the plaintiff.

The plaintiff, her husband and their nephew, then ten years of age, were guests in the defendant's automobile. The party was en route on Christmas, 1927, from the town of Everson to the city of Keyser, both in the state of West Virginia. Prom Everson they proceeded in a northerly direction into the state of Pennsylvania, thence eastwardly on the National Pike, expecting to re-enter West Virginia before reaching their journey's end. After they had passed the top of Summit Mountain and were on a slight descent (in Pennsylvania), on a section of the road which was comparatively straight for several hundred feet, the seven-passenger automobile in which they were traveling encountered sheet ice causing it to slip from the road and overturn, with resultant injuries to the plaintiff. At the time of the accident the automobile, in second gear, was moving at the rate of about 18 miles per hour.

The negligence on the part of the defendant alleged by the plaintiff and relied upon by her as the basis of recovery is averred in her declaration to be: (1) defective brakes; (2) failure of defendant to have non-skid chains on the tires at the time of the accident; (3) failure to use due care in the manner of driving the automobile immediately prior to the accident and at the time thereof.

This is the second time this case has been in this Court. On the first review we reversed a judgment for $900.00 in favor of the plaintiff. Clise v. Prunty, 108 W. Va. 635, 152 S. E. 201. As stated in the opinion the negligence upon which the plaintiff at that time sought to predicate recovery was "the driving of the car without chains and with defective brakes." Judge Hatcher, speaking for the Court, stated in the opinion: "She had adequate opportunity to protest the condition of the brakes and the absence of chains if she had so desired. As a guest she was not required to exercise the same degree of care for her safety as the driver of the automobile. But she could not shunt the entire responsibility upon him. She herself should have exercised ordinary care for her own welfare. If she knew or by due diligence should have known that defendant was not taking proper precautions, it became her duty to remonstrate. Where possible danger is reasonably manifest to an invited guest, and she sits by without warning or protest to the driver and permits herself to be driven carelessly to her own injury, she becomes a co-adventurer in the risk and is thereby barred of recovery. TIardie v. Barrett, 257 Pa. 42, 46; Munnich v. Transit Co., 267 Pa. 200; Nutt v. B. B. Co., 281 Pa. 372, 377-8."

There is no appreciable difference in the present record and the former one with respect to alleged defective brakes and the absence of chains. The first decision is the law of the case with reference to those matters, and they will not on this review be further discussed. (It should be noted, however, that there is no evidence tending to show that the accident was due to alleged defects in the brakes.)

As to the manner in which the defendant was driving immediately before the accident, the evidence is more in detail on the second trial than it was on the first. The difference, however, is to be found only in the testimony of the defendant. At the first trial he testified in his own behalf and only to the proposition that Mrs. Clise, some time before the accident, requested him to take her to her mother's home at Keyser. At the second trial he was called as a witness for the plaintiff and testified at length with reference to the accident and to the manner of driving immediately preceding the accident. He said: '' We was noticing the snow on the trees along, occasionally. * * * We noticed the snow on the trees all along as we went." In response to a question on crossexamination as to whether he was paying attention to the road just prior to the accident, he said: "Part of the time I was and part of the time I would look over at the trees. Where you could see a nice view, you would look." In response to a question on direct examination as to whether he was looking at the snow on the trees when he came to the place where the accident occurred he said: "Well, I was looking at the snow, partly. You couldn't discover that ice until you hit it." Further: "Q. If you had been looking ahead at the snow while you where driving, I will ask you if you could have seen this place where you went off of the road? A. Well, I might. Q. In time to stop your car before you got to it? Is that true? A. Yes I expect it is. Q. How is that? A. Yes, I expect it is true. The ice was a whole lot the color of the road. It was pretty hard to tell

112 W. Va. too. Q. But you say you were looking off at the scenery before this accident? A. Yes sir, some, yes sir, occasionally. Q. Well were you looking at the scenery immediately before the accident? A. Just a little bit before. Q. If you had been looking at the road, could you have seen the ice in the road before the car went off! A. Yes sir. It was almost the color of the road. I don't know whether you could have saw it or not; it was almost the color of the road, that ice, and awfully slick too. * * * Q. Mr. Prunty, how far back could you have seen this ice in the road if you had been looking at the road? A. I could have saw it 300 feet or more I expect." On cross-examination: "Q. You were following a car? A. Yes sir. Q. How close to it were you? A. 100 feet back. Q. Then you couldn't have seen the ice more than 100 feet away? A. I don't know whether I could or not have seen the ice that far or not."

It is to be noted that the defendant does not admit that lie was looking at the scenery at the time the car started to skid. The most he admits is that he had been looking at the scenery. His statement that the ice was about the color of the road and that you could not discover it until you hit it is not contradicted by any one and is supported by the testimony of the plaintiff's husband, who was riding on the front seat with the defendant. On direct examination the husband testified that he did not notice the ice until the automobile came close to it, thirty-forty of fifty feet away. On cross-examination he admitted that on the first trial he stated that he did not notice the ice until they were "right on it". Further, on cross-examination second trial: "Q. When you testified, in May, 1929, (the first trial) and you said 'right on it', did you mean forty or fifty feet? A. Yes sir. That would be right on it, wouldn't it, a car traveling at any speed at all?"

Was the defendant guilty of negligence in his manner of operating the automobile? He was driving slowly in second gear. Those facts show caution, not negligence. While he admits that he had been looking at the scenery, it is not admitted or proved that he was looking at the scenery at the time the car started to skid, or that the fact that he had been looking at the scenery had anything to do with the car's slipping on the ice and the resultant accident. Therefore, the fact that he, along with the other persons in the car, had been looking at the scenery prior to the accident must be eliminated from the equation.

The problem which remains is in double aspect. First, was the defendant negligent in driving the automobile upon the ice thus affording opportunity for the machine to slip and cause the accident? Second, if the defendant was guilty of negligence in so doing, was the plaintiff guilty of contributory negligence?

It does not follow from the mere fact of the happening of an unfortunate automobile accident that the operator was guilty of negligence thereby affording basis of recovery by an injured guest. As stated in the first opinion, the legal problems attendant upon this accident must be determined in the light of Pennsylvania law pertaining to such matters. (Ours is in accord.)

As noted also on the first review of this case, if there was any negligence on the part of the defendant in operating his car with the brakes in an imparled condition or in operatingit without non-skid chains on the wheels, the plaintiff knew about those conditions, and if she failed to protest she cannot complain of injury which later arose. As already observed, that holding constitutes the law of this case and those matters are eliminated from present consideration. Leaving them out of the problem, what did the defendant do that he ought not to have done, or what did he leave undone which he should have done, therby causing the accident? If the evidence disclosed that the accident was caused by his carelessly looking at the scenery of the...