Pittsburgh-Wheeling Coal Co. v. Wheeling Public Service Co.
| Decision Date | 23 October 1928 |
| Docket Number | 6251. |
| Citation | 145 S.E. 272,106 W.Va. 206 |
| Parties | PITTSBURGH-WHEELING COAL CO. v. WHEELING PUBLIC SERVICE CO. |
| Court | West Virginia Supreme Court |
Submitted October 16, 1928.
Syllabus by the Court.
Where the verdict and judgment is plainly in excess of the amount the plaintiff is entitled to recover according to the evidence proper to be considered, and the illegal part of the verdict is not clearly ascertainable by the court without assuming the functions of the jury and substituting its judgment for theirs, its action in setting aside the verdict and awarding a new trial will not be disturbed on appeal.
The general rule is that it takes a stronger case, in an appellate court, to reverse an order granting, than one refusing, a new trial.
Additional Syllabus by Editorial Staff.
Trial court held not to have abused discretion in awarding new trial after verdict for plaintiff, in action for damages to automobile truck in collision with street railway car, on ground of error in instruction on the doctrine of last clear chance and excessiveness of verdict.
Error to Circuit Court, Ohio County.
Action by the Pittsburgh-Wheeling Coal Company against the Wheeling Public Service Company. To review an order setting aside a verdict for plaintiff and awarding a new trial to defendant plaintiff brings error. Affirmed.
Handlan, Garden & Matthews, of Wheeling, for plaintiff in error.
John J. Coniff, for Wheeling, for defendant in error.
This is an action of trespass on the case, instituted in the circuit court of Ohio county. The declaration alleged damages in the sum of $4,000 by reason of an accident wherein a 3 1/2-ton automobile truck owned by the plaintiff was struck by a street railway car owned and operated by the defendant company. The jury found for the plaintiff in the amount declared on. The plaintiff comes here on writ of error to an order of the trial court setting aside the verdict and awarding a new trial to the defendant on motion of the latter.
The accident occurred at the intersection of Fourth and Center streets in the town of Fulton. The tracks of defendant company occupy Center street at that point. It seems the National road runs parallel to and one block north of Center street at the Fourth street intersection. Fourth street is 20.55 feet in width from curb to curb, and Center street 34 feet. The driver of plaintiff's truck had been accustomed to driving down Fourth to Center street and making the turn into that portion of Center street to the north of the car tracks, a space of 14 feet and 10 inches. To do this he generally moved to the left of the center of Fourth street. On the occasion of the accident, as he turned off the National road into Fourth street, another truck turning out of Center street caused him to pull his truck over to the curb on the right of the street, where he stopped it. This point was 35 feet back from the intersection, and from it the driver's view up Center street to the right was somewhat obscured by a one-story house on the near corner. He resumed the trip down grade to the intersection, where the grade became almost level, expecting, as he testified, to make the turn into that portion of the traveled way to the north of the car track. Observing an approaching street car going in the direction of Elm Grove, after starting to make the turn, he suddenly turned his car back to the left, put on the gas and proceeded to leave the wheel. He testified that he believed that it was impossible for him to make the turn into the space to the north of the car track without having a head-on collision with the approaching street car, and that he cut the car out of its intended direction in the hope of avoiding a collision. The motorman operating defendant's street car stated that there was no intimation at any time that the truck would do otherwise than make the turn into that portion of Center street to the north of the car tracks, and that, while he could have stopped within 3 or 4 feet, the change in direction of the plaintiff's driver was so sudden that he did not have time to do anything.
The motion to set aside the verdict and grant a new trial was based upon alleged errors in the giving and refusing of instructions, the introduction of evidence, the excessiveness of the verdict, and that the same was contrary to the evidence, and that plaintiff was not entitled to a recovery, since the driver was shown to be guilty of contributory negligence. It was agreed by counsel, before the court, that the trial court sustained the motion on the following grounds: (1) That instruction No. 9A, in regard to last clear chance, should not have been given; and (2) that the verdict was excessive.
Was the doctrine of "last clear chance" applicable in the case made here? This doctrine cannot be successfully invoked where the plaintiff has carelessly placed himself in a position of danger, and the record discloses no act of omission or commission by the defendant, after discovering the danger of the plaintiff, whereby the accident might have been avoided. Buchanan v. Railway Co., 99 W.Va. 326, 128 S.E. 652. The driver for the plaintiff brought his truck to a complete stop at a point near the right curb of Fourth street 35 feet from the nearest rail of the car line. He could not see the street car coming from that point. The fact that he had traveled over this same route daily for 6 weeks established his knowledge of the presence of the track and that cars traveled over it at frequent intervals. That he knew how to make the turn without subjecting himself to the danger of a collision is shown by his own testimony. From the point on Fourth street where he had stopped, he started off in high gear from the momentum of the car, drifting toward Center street, at the same time steering his car to the left and to the center of Fourth street, in order that he might make the turn to the right without his "front end going over past the center of Center street." He states that he was moving at a rate of 6 or 7 miles per hour, that he had his car under control, and that his brakes were in excellent condition. Just before he got to the corner he states that he started to make his turn, and that he was about 8 feet from the street car line when he saw the approaching street car. At this time he shifted his truck into second gear. This was the situation when he says that he realized it was impossible to make the turn to the right without a head-on collision, and when he pulled to the left and tried to get across the street car track before the on-coming street car hit him. In his effort to get across the track, he put on the gas and leaped from the car. The impact came almost instantaneously. He made no effort to stop the truck and avert the accident. He states that he could stop his truck at the speed he was going in about 3 or 4 feet, but later states that under the existing conditions it would take 15 or 18 feet. He admits that he knew of this before starting down into Center street. Knowing this, did he in reality have control over his car?
Turning now to the street car: What did the motorman do or omit to do after discovering the danger to the plaintiff whereby the accident might have been avoided? While the plaintiff's witnesses fix the speed of the street car at about 25 miles per hour, the motorman and divers people riding in the car say it was traveling about 4 to 6 miles per hour. Counsel for plaintiff claim that going at the latter rate of speed the motorman...
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