Ritter v. Hicks

• Decision Date: 09 November 1926
• Docket Number: 5747.
• Parties: RITTER v. HICKS et al.
• Court: West Virginia Supreme Court

135 S.E. 601

102 W.Va. 541

RITTER v. HICKS et al.

No. 5747.

Supreme Court of Appeals of West Virginia.

November 9, 1926

Submitted October 20, 1926.

Syllabus by the Court.

The rights of pedestrians and vehicular traffic, in the use of streets and highways, are generally "mutual, equal, and co-ordinate." A pedestrian should use ordinary care for his own safety when crossing a street or highway; however, he has the right to assume that others will use a like care to avoid injuring him. Failure to anticipate omission of such care does not render the pedestrian negligent as a matter of law. In case of injury to a pedestrian by a vehicle, what constitutes ordinary care is generally a question of fact for the jury. Deputy v. Kimmell, 73 W.Va. 595, 80 S.E 919, 51 L. R. A. (N. S.) 989, Ann. Cas. 1916E, 656.

The law does not impose upon the pedestrian the burden of looking any certain number of times before crossing a street or highway; neither is he bound to await the passing of an approaching vehicle, unless its proximity or apparent speed renders crossing hazardous. If the way appears open he may proceed, and his care in that respect is generally a question of fact for the jury. Deputy v. Kimmell, supra.

The owner of an automobile purchased for demonstration and sale and not for family use, is not responsible under the "family purposes" doctrine for a tort committed by his son while driving the automobile; neither is he liable under the doctrine of respondent superior, because the son was employed to sell cars owned by the father, when the car was being used after business hours, not in the course of the employment, but for the son's own pleasure, even though the use was with the tacit consent of the owner.

Error to Circuit Court, Mercer County.

Action by Alice Ritter, administratrix of the estate of James E Ritter, deceased, against H. W. Hicks and I. R. Hicks. Judgment for plaintiff, and defendants bring error. Reversed and dismissed as to defendant H. W. Hicks, and affirmed as to defendant I. R. Hicks.

Harold A. Ritz, of Charleston, George Richardson, Jr., of Bluefield, and Campbell & McClintic, of Charleston, for plaintiffs in error.

Sanders, Crockett, Fox & Sanders, of Welch, for defendant in error.

HATCHER J.

This writ of error involves the validity of a judgment of $9,250, recovered in the circuit court of Mercer county against the defendants H. W. and I. R. Hicks by the plaintiff, as damages for the death of her husband, James E. Ritter.

At about 8 P. M. of December 23, 1924, Mr. Ritter was struck by an automobile on a street in the city of Bluefield. The injuries received then caused his death on the following day. The automobile was being driven by I. R. Hicks, who is the son of H. W. Hicks. H. W. lives at Pocahontas, Va., where he deals in automobiles. He is also the sole proprietor of an automobile agency in Keystone, W.Va. I. R. is the manager, and in full control of the Keystone business. It was his habit to use the cars under his charge for his own pleasure. This practice was known to, and seemingly approved by, his father. On the night of the accident I. R. was driving, for his own pleasure, a heavy Lincoln sedan, kept at the Keystone agency for demonstration and sale.

The testimony of plaintiff is that she and her husband started to cross Bland street at a point about 40 feet from its intersection with Federal street; that it was dark and rainy at the time; that they saw a car coming south on Bland street and waited until it passed; that they then looked for other cars and saw the defendant's car coming north on Bland street, about 75 yards away and "with real bright lights." The mental processes of the two are described in her statement:

"Because it was so far away we didn't think of it hitting us. We didn't think of speeding and thought we had plenty of time to cross."

They then attempted to do so. They did not look again in the direction of the sedan and did not realize its proximity until it was upon them. At the time of the accident, they were near the center of the street, which is 33.7 feet wide at that place. Several witnesses testified that the sedan gave no signal of its approach; that its speed did not slacken; that it was making from 25 to 35 miles an hour when it struck Mr. Ritter; and that it knocked or dragged his body 40 or 50 feet.

I. R. Hicks was accompanied by a young man named Baylor. I. R. estimated that the sedan had slowed down to 7 or 8 miles an hour at the intersection of Bland and Federal streets. Baylor fixed its speed at the intersection at 5 to 6 miles an hour. Neither gave his opinion as to the speed of the sedan at the place of the accident. Baylor testified that they kept picking up speed after they entered Bland Street. I. R. stated that his lights were dimmed, and that he could see only about 10 feet in front of the car; that there were no street lights at that place on Bland street, and what little lights the street had came from the store lights; that he did not see Mr. and Mrs. Ritter until his car was within 3 or 4 feet of them, when he threw on his brakes, slid his wheels, and came to a stop. He did not say when he switched from the bright to the dimmed lights. No witness for defendants testified as to how far the body of Mr. Ritter was knocked or dragged by the sedan. It was shown, however, that the plaintiff was crossing the street to a fruit store which was 15 feet from a gasoline station in front of which the sedan came to a stop.

For I. R. Hicks it is contended that Mr. Ritter was guilty of contributory negligence, as a matter of law, in failing to watch the sedan and use due care to avoid being struck after seeing it approaching.

Counsel for I. R. do not in terms deny that he was negligent. They attempt, however, to palliate his culpability on the theory that if his car struck the decedent in front of the fruit store and came to a stop in front of the gasoline station, just 15 feet from the place of contact, the sedan could not have been running at the speed estimated by plaintiff's witnesses. This theory is predicated on evidence most favorable to defendants. The evidence favoring plaintiff, to which we must now give the preference, fixes the place where the decedent was struck in front of a fire hydrant. The hydrant is about 40 feet from the gasoline station.

Upon the charge of contributory negligence, the court should review the circumstances surrounding the accident from the standpoint of the decedent. The mere fact that he suffered an injury may indicate mistaken inferences; but want of care does not necessarily accompany an erroneous decision. The law makes due allowance for "the influences which ordinarily govern human action." Lent v. Railway Co., 120 N.Y. 467, 24 N.E. 653. The test is not, was his judgment at fault? but, does his conduct indicate that he failed to use ordinary prudence under the circumstances at the time, as he conceived them? Extraordinary care is not required in such case, and the conduct of the injured party is not to be measured by that of the highly cautious. Meeks v. Railway Co., 52 W.Va. 99, 43 S.E. 118.

A common thought running through the earlier opinions of this court on contributory negligence is that one is not required to anticipate heedlessness in another; that he has a right to presume that another will act with care; and that, if one is injured as a result of that presumption, he is not guilty of contributory negligence. Washington v. Railway Co., 17 W.Va. 190, 213; Riley v. Railway Co., 27 W.Va. 145, 162; Barker v. Railway Co., 51 W.Va. 423, 41 S.E. 148, 90 Am. St. Rep. 808; Meeks v. Railway Co., supra (page 103 ). That doctrine is peculiarly applicable to automobile accidents, and in the later case of Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, 51 L. R. A. (N. S.) 989, Ann. Cas. 1916E, 656, it was held:

"A person lawfully in a public highway may rely upon the exercise of reasonable care by drivers of vehicles to avoid injury."

This right is upheld generally by the authorities. Kessler v. Washburn, 157 Ill.App. 532; Cole Co. v. Ludorff, 61 Ind.App. 119, 111 N.E. 447; Aiken v. Metcalf, 90 Vt. 196, 97 A. 669; Klokow v. Harbaugh, 166 Wis. 262, 164 N.W. 999; Moffatt v. Link, 207 Mo.App. 654, 229 S.W. 836; Benoit v. Miller (R.I.) 67 A. 87; Johnson v. Johnson, 85 Wash. 18, 147 P. 649; Huddy on Auto. (7th Ed.) par. 577; Berry, Auto. (4th Ed.) par. 378; Babbitt Motor Vehicles (3d Ed.) pars. 1330, 1682.

Deputy v. Kimmell also holds that the rights of pedestrians and drivers of vehicles, in the use of streets, are ordinarily "mutual, equal, and co-ordinate." Core v. Wilhelm, 124 Va. 150, 98 S.E. 27; Stringer v. Frost, 116 Ind. 477, 19 N.E. 331, 2 L. R. A. 614, 9 Am. St. Rep. 875; O'Dowd v. Newnham, 13 Ga.App. 220, 80 S.E. 36.

Applying those principles to the facts in this case, we must hold that Mr. Ritter had equal right to use the street at the place of the accident with I. R. Hicks; that Ritter failed to realize that the sedan was approaching at a speed which would render crossing palpably dangerous; that he assumed and had the right to assume that the sedan was being driven at a lawful rate of speed; that he had a right to assume that the close approach of the car would be signaled, if not by the horn, at least by the radiance from the lights; that he also had the right to assume that, since he had seen the sedan, its driver would see him upon a closer approach of the car and would then take due precaution to avoid running him down. Ritter's death was due to the confidence he placed and had the right, under the law, to place in the driver of the car. Misplaced confidence is not contributory negligence. Barker v. Railway Co., supra (page 427 [41 S.E. 148 90 Am. St. Rep. 808]). In ...