Riggs v. West Penn Public Service Co.
| Decision Date | 20 March 1928 |
| Docket Number | 5756. |
| Citation | 142 S.E. 521,105 W.Va. 362 |
| Parties | RIGGS v. WEST PENN PUBLIC SERVICE CO. |
| Court | West Virginia Supreme Court |
Submitted November 22, 1927.
Syllabus by the Court.
Where the evidence is insufficient to support a recovery in favor of the plaintiff on any theory of the case, the trial court should direct a verdict in favor of the defendant.
Error to Circuit Court, Wood County.
Action by Clifford B. Riggs, administrator of William Riggs deceased, against the West Penn Public Service Company. Judgment for defendant, and plaintiff brings error. Affirmed.
B. M. Whaley and C. M. Hanna, both of Parkersburg for plaintiff in error.
K. C. Moore and Robert B. McDougle, both of Parkersburg, for defendant in error.
Clifford B. Riggs, as administrator of his father, W. M. Riggs, deceased, prosecutes error to judgment of the circuit court entered on a directed verdict in favor of Monongahela West Penn Public Service Company, a corporation, in an action of trespass on the case for alleged wrongful death of decedent, resulting from a collision between a Ford coupé automobile operated by Clifford B. Riggs, in which W. M. Riggs was riding, and a street car owned and operated over its electric railway by the defendant.
The accident occurred on the afternoon of August 15, 1925, in North Parkersburg (outside the city limits), Wood county, at the intersection of West Virginia and Hemlock avenues. West Virginia avenue, over which the automobile was traveling, is 80 feet wide, with a 20-foot concrete strip in the center which had been opened to traffic for the first time that day. Hemlock avenue, along the center of which the defendant maintains its electric railway, is a dirt street 50 feet wide, crossing West Virginia avenue at right angles. Clifford Riggs and his father for several days previous to the accident had been painting a house in the vicinity of the crossing. On quitting work about 4 p. m., they placed some cans of paint in the automobile (belonging to Clifford and his brother) and started home. After reaching West Virginia avenue, about 600 feet from the crossing, they continued their course over the concrete surface to the point of accident at the rate of about 15 miles per hour, according to the testimony of Clifford, who denies previous knowledge of the crossing and further testifies that he first became aware of the street car at the very moment of the collision. There was no crossing sign, and the track was partially hidden by the concrete surface of the street. Several witnesses for the defendant testified that the automobile was traveling about 25 miles an hour, and that both occupants, as it neared the crossing, were looking in the direction opposite the approaching street car; that the whistle on the street car was blown; but the only one testifying concerning the location of the street car at the time fixes it as 146 feet from the center of the crossing. There is evidence also that the whistle was blown immediately before the collision. According to the motorman's testimony, he "blew for West Virginia avenue," and also when he was "approaching the automobile"; that he was about "70 feet or maybe a little more" from the center of the crossing, traveling at the rate of 20 to 25 miles an hour, when he saw the automobile a little farther from the crossing, approaching at the rate of 30 to 35 miles an hour; that the street car (44.8 feet long and weighing 49,000 lbs.), at the rate of speed it was moving, could not have been stopped within less than 150 feet; that on observing the automobile he applied the emergency brakes, "the quickest thing I could do and about the best I could do"; and that the front end of the car was 84.8 feet beyond the crossing when it stopped. Witnesses for the plaintiff deny that the whistle was blown for the crossing.
Granting but not deciding, that the issue as to whether or not the defendant failed to give proper crossing signals was a jury question, W. M. Riggs, in our opinion, was guilty of contributory negligence in failing to observe the crossing and warn the driver of the danger in time to avoid the accident. He had resided for several months within a few hundred feet of the crossing. On the day of...
To continue reading
Request your trial