Quinn v. Flesher.

• Decision Date: 03 February 1920
• Citation: 85 W.Va. 451
• Court: West Virginia Supreme Court
• Parties: Cora Quinn v. B. T. Flesher et al.

85 W.Va. 451

Cora Quinn

v.B. T. Flesher et al.

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1920.

Decided February 3, 1920.

1. Evidence Radiograph Not Admissible Until Shown to Have

Been Taken So As to Represent Injuries Correctly.

Before a radiograph, purporting to show the nature and extent of an injury suffered by a party to a suit, can be received properly in evidence, it must appear that it was so taken as to represent correctly the injured member. This may be shown by the statement of the expert taking the radiograph that he operated the machine so as to produce a correct result, or it may sufficiently appear from other circumstances, such as that treatment was administered for the relief of the injury disclosed by the X-Ray with favorable results. (p. 456).

2. Same Experts May Testify as to Injuries Shown by Radio-

graph Where it Has Been Lost and Injured Condition Has Changed.

Experts, who have examined a radiograph which it is shown correctly represented an injured condition being inquired about in the trial of a cause, may be permitted to testify as to what the radiograph showed the injured condition to be, without its introduction in evidence, where it appears that the same has been lost and the original injured condition has been changed by medical and surgical treatment as well as the healing processes of nature during the intervening time. (p. 457).

3. Damages Denial of Application for Leave to Take Radiograph

of Injury During Trial Not Abuse of Discretion.

Where, after the trial of an action to recover damages for injuries sustained from a broken bone has been entered upon, the defendant requests that a radiograph be made of the injured member and the plaintiff is willing that it may be done, it is not error for the court to refuse such request where no reason is given for not having made the same before the trial and it does not appear how long the trial will be delayed by granting such request. (p. 457).

4. Ferries Proprietor's Duty as to Safe Accommodations for Pas-

sengers Stated.

It is the duty of the proprietor of a ferry to provide adequate accommodations where it usually takes on and discharges passengers and to keep the same in a reasonably safe condition, (p. 458).

5. Same Proprietor Liable for Injuries from Defect in Float

Used in Reaching Ferryboat, Though Outside Gangway.

The proprietor of a ferry is liable in damages to one intending to take passage on such ferry who is injured by falling into a hole in the floor of a barge or float provided by the operator of the ferry by means of which intending passengers reach his ferryboat from the bank of a stream, where it appears that such hole was at a point over which passengers would reasonably be expected to travel in reaching one of the points upon the float at which the boat used for the conveyance of passengers across the stream frequently took on and discharged passengers, and where it was actually taking on passengers at the time of the injury to such intending passenger. (p. 458).

Error to Circuit Court, Cabell County.

Action by Cora Quinn against B. T. Flesher and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

Holt, Duncan & Holt, for plaintiffs in error.

W. W. Smith and Williams, Scott & Lovett, for defendant in error.

Ritz, Judge:

The defendants are the owners and operators of a ferry across the Ohio River between the City of Huntington, West Virginia, and the town of Chesapeake in the State of Ohio. The plaintiff is now and was at the time of the occurrence giving rise to this litigation a resident of the town of Chesapeake. She, however, worked in the city of Huntington Mid in going to and returning from her work crossed upon the ferry of the defendants each morning and evening and had been doing so for about seven years before the accident which is the occasion of this suit. During the summer months and. in the day time during the winter months defendants used a steam ferry boat in conveying passengers and freight across the river, but after dark during the winter months passengers were conveyed across the river in a rowboat or skiff. On the West Virginia side of the river the defendants provided a barge or float at which the boat landed and took on and discharged passengers. This barge is some forty to fifty feet in length and access is had to it from the land side over an apron, one end of which rests upon the bank and the other npon the side of the barge. The end of the apron resting upon the bank is not fastened so that it moves up and down the bank as the barge is raised or lowered with the change in the volume of water in the river. This apron is supported by iron rods extending from the end thereof farthest from the barge to the top of posts erected on the barge at either side of the apron, and these posts are in turn supported by rods extending from their tops to a fastening in the floor of the barge near the side farthest from the apron. Between these posts what is called a gang-way, about ten or twelve feet in width, extends across the barge so that vehicles or passengers intending to cross the river go upon the barge by way of the apron and cross the same to the ferry boat moored upon the opposite side. This gang-way is floored over and all of that part of the barge on the lower side of the gang-way is likewise floored at the same level as the gangway and there is erected on this part a small waiting room for the use of passengers. That part of the barge above the gangway for a little space next thereto is likewise floored over on the same level as the gang-way, but there is a space at the upper end of the barge which is open. The edge of the barge all the way around except at each end of the gang-way is raised a few inches above the level of the floor by a piece of timber attached thereto. At either end of the gang-way the timber is cut away to the level of the barge floor to enable vehicles to enter or leave the ferry boat by way of the gang-way across the barge without encountering any obstruction. On either side of this gang-way at the end from which the ferryboat is entered is a post used for the purpose of making the ferryboat stationary when discharging or receiving freight or passengers. There is a similar post on the same side of the barge about ten or twelve feet above the upper side of the gang-way and just at the upper end of the floored space. As before stated, plaintiff crossed the river on this ferry twice a day practically every day using the steam ferry boat for the purpose except on Saturday evenings during the winter months, when her work kept her until after the steam ferry boat ceased running, making it necessary for her to cross the ferry on these occasions by means of the skiff or row boat.

On Saturday, March 22, 1919, aftei plaintiff was relieved from her work, she, accompanied by her father, went to the ferry of the defendants for the purpose of crossing the river to her home. She says, and in this she is corroborated by her father and other witnesses, that when she approached the barge coming down the river bank she noticed the skiff taking on passengers. She called to give notice to the man operating the skiff of her approach and accelerated her pace so as to reach the skiff before it started across the river. When she got upon the barge she noticed that the skiff was not moored at the opposite end of the gang-way but was taking on passengers from the side of the barge above the gang-way. In order to reach it she stepped under the iron rod extending from the post which is erected for the support of the apron above referred to, and just as she changed her course and made the first step her right leg went into a hole in the floor which it appears was about four inches wide and ten inches long and was caused by a piece being broken out of one of the boards constituting the floor. It appears that the iron rod extending from the top of the post above referred to to the floor was higher than the plaintiff's head at the point where the hole is in the floor. Plaintiff says that the floored space on the barge above the gang-way upon which she was entering when she fell into the hole was...