Schade v. Smith
| Decision Date | 15 September 1936 |
| Docket Number | 8363. |
| Citation | 188 S.E. 114,117 W.Va. 703 |
| Parties | SCHADE v. SMITH et al. |
| Court | West Virginia Supreme Court |
Submitted September 8, 1936.
Syllabus by the Court.
1. "In an action brought in this state to recover damages for a personal injury received in another state, the right of recovery will be tested by the laws of that state." Clise v. Prunty, 108 W.Va. 635, 152 S.E. 201.
2. A driver of a motor vehicle, who, through no fault of his own suddenly finds himself in a place of danger, and is required to act without time to consider the best means of avoiding the same, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method. The law does not require of one in such circumstances the same degree of care and caution as it requires of one who has ample opportunity for the full exercise of his judgment and reason.
Error to Circuit Court, Mineral County.
Action by Mary V. Schade against William Smith and another. To review an adverse judgment, plaintiff brings error.
Affirmed.
Ernest A. See, of Keyser, for plaintiff in error.
Robinson & Stump and J. M. Holt, both of Clarksburg, and Emory Tyler of Keyser, for defendants in error.
This is an action by a guest passenger against her daughter, as driver, and son-in-law, as owner, of a certain Ford V-8 sedan, to recover damages for injuries due to alleged negligence. After completion of plaintiff's evidence in chief, a motion to strike was sustained and a verdict directed for the defendants. A motion for a new trial having been subsequently overruled, the plaintiff prosecutes error.
The accident occurred June 16, 1934, in the state of Maryland some twenty-five miles east of Cumberland, on the National Highway. Plaintiff, together with her daughters, Mrs. Chaffe Brickman and Mrs. Agnes Smith, and granddaughter, Janet Smith, had started to drive from Piedmont, W. Va., to Hagerstown, Md, in two cars maintained by William Smith for the pleasure of his family. Mrs. Brickman accompanied Janet in a Ford Cabriolet coupé, and Mrs. Schade, plaintiff herein rode in the front seat of the sedan, with Mrs. Smith.
It appears from the meager facts in the record that the two cars-the coupé leading-were descending a hill, or incline with a short curve at the bottom; that the coupé, when about halfway down, got out of control; and that Janet, after an unsuccessful attempt to shift into second gear, put on the brakes, causing the coupé to skid into the guard rail, on the right of the highway. This impact, according to Mrs. Brickman, "jerked us around and once around again," the coupé coming to rest against the guard rail heretofore mentioned, and facing in the direction from which it came. When Mrs. Schade first noticed the coupé after the same had gotten out of control, it was facing up the grade "leaping and jumping and coming back towards us." Whether or not she saw it on the first or second turn, the evidence does not reveal. However, on seeing the coupé turn around and coming back, witness "just sort of went blind." She further testified that she and Mrs. Smith were "plenty distance back" of Janet's coupé-"more than the width of the road back of them, when we got around her car." While trying to look back of the coupé, this witness thought that the sedan "did something." She looked around to see what Mrs. Smith "was doing at the wheel," and found that the car was going up a steep embankment. The shale against which the front wheels were resting gave way and the sedan fell over into the highway, after which everything was "midnight" to the witness. She could not say whether Mrs. Smith ever checked her speed. Mrs. Brickman testified that the sedan...
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