Oldfield v. Woodall

• Decision Date: 15 November 1932
• Docket Number: 7303.
• Parties: OLDFIELD v. WOODALL.
• Court: West Virginia Supreme Court

166 S.E. 691

113 W.Va. 35

OLDFIELD v. WOODALL.

No. 7303.

Supreme Court of Appeals of West Virginia.

November 15, 1932

Submitted October 26, 1932.

Rehearing Denied Dec. 15, 1932.

Syllabus by the Court.

Act done under sudden danger attributable to another's negligence is not contributory fault as matter of law.

Contributory negligence of motorcycle policeman who, after turning left at intersection, attempted unsuccessfully to get through narrow opening which resulted from defendant's having parked automobile at angle, held for jury.

The evidence disclosed that the motorcycle policeman was running at about 18 miles an hour, and that, while he had turned off his gas as he crossed intersection, he failed to apply hand or foot brakes. It further appeared that it was not until he had passed around automobile at intersection that he became aware of presence of the parked automobile protruding into the street. Due to defendant's automobile having been parked at angle, there was only an estimated three-foot opening between this automobile and another car in line of traffic waiting for traffic light.

Disclosure on cross-examination that defendant's witness was engaged in insurance business, not as adjuster, held not to warrant mistrial as indicating defendant had indemnity insurance.

Disregard of statute or ordinance, where natural or proximate cause of injury, is prima facie negligence.

1. One who does an act under a sudden danger attributable to another's negligence is not to be regarded as guilty of contributory fault as a matter of law, even though the act be regarded as a negligent one if performed under circumstances not indicating sudden peril.

2. The mere fact that counsel for plaintiff, on cross-examination elicited the information that the witness was, at the time of the accident, engaged in the insurance business, and the further fact that he was not an adjuster, is not sufficient in the absence of evidence indicating to the jury that defendant was covered by indemnity insurance, to support a motion for a mistrial.

3. Disregard of a requirement of a statute or an ordinance is prima facie negligence when it is the natural and proximate cause of an injury.

Error to Circuit Court, Kanawha County.

Action by Robert F. Oldfield against R. E. Woodall. Judgment for plaintiff, and defendant brings error.

Affirmed.

Leo Loeb and Robert H. C. Kay, all of Charleston, for plaintiff in error.

Rummel Blagg & Stone and H. Rummel Anderson, all of Charleston, for defendant in error.

WOODS J.

The admitted fact that defendant's Packard automobile was parked at an angle to, instead of parallel with and within four inches of, the southeast curb of Delaware avenue between Randolph and Virginia streets, as required by an ordinance of the city of Charleston, is the negligence declared on in this case as the proximate cause of plaintiff's injury. Defendant prosecutes error from an adverse judgment.

Before taking up the alleged errors relating to instructions and the introduction of evidence, we will deal with the question of contributory negligence.

Plaintiff, a motorcycle policeman, who had received orders to go to 411 Randolph street, a short distance northeast of Delaware avenue, proceeded east on Central avenue, which ends at the intersection of Virginia street and Delaware avenue, and, upon arrival at such intersection, turned northeast (left) into Delaware avenue. As he crossed the intersection at eighteen miles per hour, he passed within three feet of the front end of an automobile, which was then standing in the center of Delaware avenue, waiting for the traffic light to change from red to green. It was not until he had rounded this automobile that he became aware of the presence of the defendant's Packard (parked at an angle, with its rear end, which protruded out into Delaware avenue a distance of eleven feet, but forty feet from the north curb line of Virginia street), and the fact that his approach was apparently cut off, except for an estimated three-foot opening between the end of defendant's automobile and a second car in the line of traffic waiting for the green light. Rather than attempt to stop under such conditions, he decided to direct his motorcycle through the aperture. In the attempt, the right handlebar caught on the tail-light bracket of the Packard, whereby the motorcycle overturned, falling upon and permanently injuring plaintiff. He had turned off the gas as he crossed the intersection, but at no time did he apply either the hand or foot brake. Defendant asserts that plaintiff contributed to the accident by not applying his brakes and in proceeding at a speed in excess of that permitted by the city ordinance. Assuming that neither the state law nor the ordinance of the city of Charleston relating to speed applies (a question which will be dealt with later in this opinion), was plaintiff guilty of contributory negligence in view of his statement that a motorcycle, running at eighteen miles per hour, could ordinarily be stopped in thirty-five to forty feet?

The general principles which require one to act in such a manner as to avoid injury to himself, and to take such steps to avoid accidents as would be taken by a reasonably prudent person under like circumstances, are not enforced in all their rigor as to situations of sudden danger. This is a recognition of the fallibility of human nature in sudden crises and the greater probability of errors of judgment occurring when a danger is imminent and where a person is compelled instantly, without delaying for deliberation, to adopt some course of conduct to avoid injury. McIntyre v. Orner, 166 Ind. 57, 76 N.E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087. Difficult questions of negligence and contributory negligence may be raised in adjusting controversies as to responsibilities for accidents which may occur. These questions are ordinarily for the jury to determine from all the facts and circumstances of each particular case. This course is buttressed by decisions from all jurisdictions.

In the case of Ritter v. Hicks, 102 W.Va.

541, at page 544, 135 S.E. 601, 602, 50 A. L. R. 1505, the court, speaking through Judge Hatcher, said: "Upon the charge of contributory negligence, the court should review the circumstances surrounding the accident from the standpoint of the decedent. The mere fact that he suffered an injury may indicate mistaken inferences; but want of care does not necessarily accompany an erroneous decision. The law makes due allowance for 'the influences which ordinarily govern human action.' Lent v. [N. Y. Cent. & H.] Ry. Co., 120 N.Y. 467, 24 N.E. 653. The test is not, was his judgment at fault? but, does his conduct indicate that he failed to use ordinary prudence under the circumstances at the time, as he conceived them? Extraordinary care is not required in such case, and the conduct of the injured party is not to be measured by that of the highly cautious. Meeks v. [Ohio River] Ry. Co., 52 W.Va. 99, 43 S.E. 118." Plaintiff indicated that the brakes could not be applied safely prior to the righting of the machine after completing the curve. We cannot say, as a matter of law, under plaintiff's testimony, that he was guilty of contributory negligence which caused or contributed to his injury. The question is clearly one of mixed law and fact, and therefore for the jury. The latter's verdict in favor of the plaintiff is conclusive on this court, and the judgment entered thereon must be upheld in the absence of other error.

It is urged that the trial court erred in not declaring a mistrial, after information had been elicited from the defendant's witness Evans, upon cross-examination, to the effect that said witness, at the time of the accident, was in the insurance business. The cross-examination, statements of counsel, and the rulings of the court, on this question, are as follows:

"Q. Who was the first person that talked to you about this case?

"Mr. Kay: We will admit that we talked to him.

"Q. I want to know who and when with reference to this accident you talked to who was connected with the defendant's case here. A. With Mrs. Woodall.

"Q. When with reference to the accident? A. Right at the time of the accident.

"Q. And then to whom did you talk that is connected with this case? A. The next person was Mr. Kay.

"Q. What day was that with reference to the accident? A. I could not say.

"Q. Was it the same day or the next day? A. No, it was not the same day. It was sometime afterwards.

"Q. What is your business, Mr. Evans? (Objection; overruled as going to the credibility of the witness, and for no other purpose. Exception.) A. What is my business?

"Q. Yes, sir. A. I am in the automobile body works business.

"Q. Is that your main business? A. Yes, it is.

"Q. What other business have you besides that? A. I don't have any.

"Q. What was your business at the time of this accident and a short time thereafter? A. I was in the insurance business.

"Q. You were an insurance adjuster, were you not? A. No, sir, I never have been. I have been an insurance agent but no adjuster.

"The witness then withdrew.

"Thereupon, the Court, counsel for the parties and the reporter retired to the Court's chamber, out of the hearing of the jury, where the following proceedings were had: Mr. Kay: Before a question was propounded as to the occupation of the witness I advised Judge Rummel, of counsel for the plaintiff, that the occupation of the witness Evans at the time of the accident was in the insurance business, and I objected to a question being propounded as to his occupation, knowing that would be his answer. He answered the question, as the record discloses. I move to have a

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