Proudfoot v. Pocahontas Transp. Co.

• Decision Date: 02 February 1926
• Docket Number: (No. 5480)
• Citation: 100 W.Va. 733
• Court: West Virginia Supreme Court
• Parties: Ella Proudfoot v. Pocahontas Transportation Company

100 W.Va. 733

Ella Proudfoot

v.Pocahontas Transportation Company

(No. 5480)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1926.

Decided February 2, 1926.

1. Interrogatories Special Interrogatories to Jury Should be Submitted Before Argument of Counsel.

Special interrogatories to the jury should be submitted before argument of counsel, (p. 737.)

2. Venue As a General Rule Granting of Change of Venue Discretionary With Trial Court, Subject to Review Only in Cases of Abuse.

As a general rule the granting of a change of venue is discretionary with the trial court, subject to review only in cases of abuse, (p. 736.)

Error to Circuit Court, McDowell County.

Action in Trespass on the case, brought by Ella Proudfoot against Pocahontas Transportation Company. Judgment for plaintiff, and defendant prosecutes error.

Affirmed.

Sanders, Crockett, Fox & Sanders, for plaintiff in error. Strother, Sale, Curd & Tucker, for defendant in error.

Litz, President:

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 $7,000.00 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 buses 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 eight miles. The bus was provided with seats for sixteen passengers. On leaving Welch the seats were filled and eight or ten persons occupied all available standing room. The bus, still crowded, after traveling east seven 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 practically perpendicular hillside on the left and steep embankment to the right. In the center of the road is a nine 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 twenty 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 forty or fifty feet, without cause or warning the spindle arm of the steering gear broke and before he could stop hy 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 crystalization 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, however, that the metal at the point of breakage was in fact crystalized. Assuming that the broken part had been weakened by crystalization of the metal, and that it broke before the ear 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 accident. It was shown by witnesses for the plaintiff that the car, traveling at the rate of speed claimed by the driver, could have been stopped within a distance of from two to four feet; and by the witness Edgerton, for the defendant, that it...