Proudfoot v. Pocahontas Transp. Co

Citation132 S.E. 746
Decision Date02 February 1926
Docket Number(No. 5480.)
PartiesPROUDFOOT. v. POCAHONTAS TRANSP. CO.
CourtSupreme Court of West Virginia

Rehearing Denied with Modifications May 6, 1926.

(Syllabus by the Court.)

Error to Circuit Court, McDowell County.

Action by Ella Proudfoot against the Pocahontas Transportation Company. Judgment for the plaintiff, and defendant brings error. Affirmed.

Sanders, Crockett, Fox & Sanders, of Blue-field, for plaintiff in error.

Strother, Sale, Curd & Tucker, of Welch, for defendant in error.

LITZ, P. This action, in trespass on the case, was brought to recover damages for personal injuries sustained by the plaintiff, Ella Proudfoot, while a passenger on the motor bus of defendant, a corporation. To the judgment upon a verdict in favor of plaintiff for $7,000, the defendant prosecutes error.

Acting under a franchise or certificate of convenience from the state road commission, the defendant operates between fixed termini in McDowell county a number of motor busses for the carriage of passengers. On August 25, 1924, the plaintiff boarded one of its busses at Welch for passage east to Vivian, a distance of about 8 miles. The bus was provided with seats for 16 passengers. On leaving Welch the seats were filled, and 8 or 10 persons occupied all available standing room. The bus, still crowded, after traveling east 7 miles from Welch plunged over a steep embankment, causing serious injury to the plaintiff and other passengers, and destruction of the machine.

For several hundred feet east and west of the scene of the wreck, the road, constructed by means of a deep side cut along the face of the mountain, ascends eastwardly a grade between a practically perpendicular hillside on the left and a steep embankment to the right. In the center of the road is a 9-foot concrete strip, with a dirt surface on either side several feet wide. To the left of the concrete the dirt slopes to the hillside, forming a drain or ditch.

According to the evidence for plaintiff, the driver was unable, before reaching the point of the accident, properly to regulate the speed of the bus down grade by the use of the service brake. Immediately before the wreck, in an attempt to pass a truck moving in the same direction, the bus was driven sharply to the left into the ditch, then Violently back across the road, causing the driver to lose control of the machine. Continuing a short distance, apparently unguided, it went over the embankment.

The driver of the bus, who was only 20 years of age at the time of the trial, February 26, 1925, testified that he passed the truck without difficulty and came back into the center of the road with all wheels of his machine on the concrete; that, after proceeding in this manner for 40 or 50 feet, without cause or warning, the spindle arm of the steering gear broke, and, before he could stop by the use of the service and emergency brakes, the car went over the embankment. The defendant introduced the testimony of several passengers to support the claim of the driver that the passage of the bus around the truck was uneventful. It also presented as a witness one R. G. Edgerton, who says that in his opinion the breaking of the spindle arm of the steering gear resulted from crystallization or hardening of the metal due to vibration and continued use, causing a movement of the molecules in the metal to the point of greatest vibration. He does not state, how-ever, that the metal at the point of breakage was in fact crystallized. Assuming that the broken part had been weakened by crystallization of the metal, and that it broke before the car left the road, is it not more probable that the breakage was due to unusual strain on the steering gear and improper operation, rather than that the part snapped without cause, as the driver contends, while he was driving the bus on straight road, over smooth concrete surface, at a moderate rate of speed?

The plaintiff also asserts that the defendant was guilty of negligence in using a defective or insufficient service brake, and that, had this brake been in good condition, the car could have been stopped by the use of ordinary effort, had the steering gear broken, as claimed by the driver, while the machine was being carefully driven over the smooth concrete surface. This contention is based upon the reputed statement of the driver while the car was leaving Welch that the service brake was defective; the alleged ineffectiveness of the brake properly to regulate the speed of the car while going down grade; and the inability of the driver to stop at the time of the...

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