Prunty v. Tyler Traction Co.

• Citation: 90 W.Va. 194
• Court: Supreme Court of West Virginia
• Decision Date: 07 February 1922
• Parties: Walter A. Prunty v. Tyler Traction Company.

90 W.Va. 194

Walter A. Prunty

v.Tyler Traction Company.

Supreme Court of Appeals of West Virginia.

Submited

January 31. 1922.

Decided February 7, 1922.

1. Witnesses To Justify Crass-Examination on Matters Not Stated in Direct Examination Party Must Call Witness as His Oivn.

A party has no right to cross-examine a witness not a party to the suit, except as to the facts and circumstances connected with the matters stated in the direct examination. If he wishes to examine him on other matters he must make him his own witness and call him as such in the subsequent progress of the trial, (p. 199).

2. Negligence Child's Contributory Negligence Depends on Age, Intelligence and Nature of Danger.

The law recognizes that children of tender years do not possess that judgment and discretion usually exercised by adults, and whether under a particular state of facts they are capable of understanding and appreciating dangers with which they are surrounded depends, not only upon the age and intelligence of the child, but also upon the nature of the perils to be encountered, (p. 200).

3. Same Three Year Old Child Incapable of Appreciating Some Perils.

While a child of the age of three years and three months might have sufficient capacity to understand and appreciate the clangers incident to some situations in which it would be placed, it cannot be said that such a child could appreciate and understand the perils incident to a situation which would require the exercise of foresight to anticipate the perilous condition as well as immediate action to avoid it after it arose, (p. 201).

4. Street Railroads Three Year Old Child Not Chargeable with Contributory Negligence in Going Upon Track.

A child of the age of three years and three months cannot be charged with contributory negligence in going upon a street car track in a busy street in front of a moving street car without first looking in the direction in which the car came, and the refusal of the court to submit the question of contributory negligence of such child to the jury under such circumstances is not reversible error, (p. 201).

5. Same Lookout Required.

It is the duty of a street railway company, in operating its cars over a public street of a city, to keep a careful lookout ahead for pedestrians who may enter upon its tracks, and when the operator of such car is not so stationed that he can observe the track in front of the moving car, or cars, it is the duty of such company to provide such lookout at a place where the track may be so observed, and the result of such observation immediately communicated to the employe in charge of the operation, (p. 203).

6 Same Failure to Keep Lookout Negligence as to Pedestrians. It is negligence for a street railway company to operate a freight car, attached in front of a passenger car, over its tracks through a public street of a city with no one on said freight car to keep a lookout for pedestrians who might enter upon its tracks; and such company will be held liable for damages resulting to a pedestrian struck by such car, where it appears that had such lookout been kept on the front end thereof the injured party would have been discovered, and the car stopped in time to avoid the accident, unless the injured party is guilty of contributory negligence, (p. 203).

7. Same Company's 'Negligence Instead of Outcry by Third Person Held Cause of Injury.

A street railway company will not be relieved of liability for injury inflicted upon a pedestrian in a public street of a city by running its car over him, because a third party, upon observing the peril of the injured party, gave an outcry of alarm which caused the injured party to stop suddenly upon the track, even though it appears that had such alarm not been given the injured party might have crossed the track in safety, (p. 201).

8. Trial No Reversal for Incompleteness of Some Instructions of Themselves Where Instructions as a Whole are Complete.

Where the instructions given in a case taken as a whole fairly and fully present to the jury the controlling propositions of law, a judgment rendered upon a verdict found by the jury will not be reversed because some of such instructions are not complete in themselves, unless in such incomplete condition they bound the jury to find a verdict for one party or the other without giving consideration to some material theory of the case. (p. 205).

9. Negligence Parents' Negligence Not Imputable to Child. The negligence of the parent or guardian having custody and control of an infant in exposing it to' danger will not be attributed to the child so as to preclude its right of action against a third person by whose negligence it is injured, (p. 202).

Error to Circuit Court, Tyler County.

Action by Walter A. Prunty against the Tyler Traction Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

M. II. Willis, for plaintiff in error. Underwood & Moore, for defendant in error.

RiT2, Judge:

By this writ of error the defendant seeks reversal of a judgment in favor of the plaintiff for damages for a personal injury sustained by him by being run over by one of the defendant's street cars operated over one of the streets

of the city of Middlebourne.

The defendant company operated an interurban electric railway line extending-from Sistersville, in the county of Tyler, to and over the main street of the city of Middlebourne in said county. On the 26th of September, 1918, the plaintiff, an infant three years, three months and twenty-six days old, was struck by one of the defendant's cars upon the main street of said city of Middlebourne, and received injuries which resulted in the loss of a part of one of his feet.

The equipment operated by the defendant company at the time of the injury consisted of a passenger car attached to which was a freight car called a trailer. The motive power was electricity and was applied to the passenger car only, the freight car being either pulled or pushed by the passenger car, depending upon the order in which the cars were operated. On the occasion of the accident two ears joined together had come from Sistersville to Middlebourne, the passenger car in front being operated by a motorman on the front end thereof. The run was continued in this order along Main Street in the city of Middlebourne, the cars stopping at such places as there was freight to unload or passengers to alight, until the terminus of the line was reached at a point near the courthouse in said city. When this point was reached the motion of the cars was reversed, and they were run in the opposite direction to what is known as Broad Street, at which point there is a switch running out to a freight station. The cars were run out on this switch and the freight remaining unloaded in the freight station. The position of the ears in relation to each other was then reversed so that on the return trip to Sistersville the passenger car would be in front and the freight car behind, and preparatory to starting on this return trip the cars were again run out on the main line and backed on Main Street with the freight car in front and the passenger car shoving it in order, to pick up passengers and freight between the point where they came on the main line and the courthouse. While thus backing down the street toward the courthouse with the freight ear in front, as the cars were then running, the plaintiff was struck at a point just opposite his home, one of the wheels of the car running over one of his feet, so badly crushing it that part of it had to be removed.

It seems that a man by the name of Smith who owns a Ford touring car had gone with the plaintiff's father and the plaintiff and his sister, another child of tender years, into the country on the day of the injury, and had just returned. The plaintiff's father brought back a sack of apples. He had gotten out of the automobile and had crossed the street to his house. Mr. Smith, the owner of the car, had also gotten out, and the plaintiff, instead of going with his father across the street to his home, remained for a short time with Mr. Smith. Smith testifies as a witness that the boy walked around the automobile with him, and that he walked past the front end thereof for the purpose of turning into an alley to the rear of his premises, and that just as he was turning into this alley he turned his head toward the street car track and saw the plaintiff thereon with the cars approaching within a few feet of him. He immediately made an outcry and ran to the boy and succeeded in jerking him off the track, but not in saving him from injury, one of the wheels of the freight car on the side next to Smith catching the boy's foot.and mashing it off.

The contention of the defendant company is that it was not negligent in the operation of the cars over the track in the manner above indicated. At the time of the accident there was no one on the freight car. The motorman on the passenger car was on the front end thereof, and on the side opposite to that upon which the boy entered upon the track, but contends that he was looking ahead on that side. On the front end of the passenger car on the same side upon which the boy entered upon the track it seems that there were two employes of the defendant stationed. These employes were standing on the lower step of the passenger car looking ahead, and one of them who testified as a witness, the other being dead, says that he was looking ahead and saw this boy coming from immediately in front of the automobile and called to the motorman to stop; that the emergency brake was immediately applied, and that the car stop- ped within a very few feet; that the boy came from in front of the automobile only a few feet in front of the freight car, and that the cars could not be stopped in time to avoid the accident. On the other hand, witnesses testify for the plaintiff that the point at which the boy came upon the track was quite a little distance from the front of the...