Scott v. Hoosier Engineering Co.
| Decision Date | 28 April 1936 |
| Docket Number | 8341. |
| Citation | 185 S.E. 553,117 W.Va. 395 |
| Parties | SCOTT v. HOOSIER ENGINEERING CO. |
| Court | West Virginia Supreme Court |
Submitted April 14, 1936.
Syllabus by the Court.
Where it is sought to recover damages alleged to have been occasioned by the violation of a statute by the defendant, it must be shown that the violation of the statute was the proximate cause of the injury before a recovery can be sustained.
Error to Circuit Court, Cabell County.
Action by Clyde H. Scott against the Hoosier Engineering Company. To review a judgment of the circuit court denying an application for a writ of error to review a judgment of the court of common pleas for plaintiff, on appeal from a judgment of a justice of the peace for plaintiff, defendant brings error.
Reversed and remanded.
Peyton Winters & Hereford, of Huntington, for plaintiff in error.
This action was brought by Clyde H. Scott against the Hoosier Engineering Company before a justice of the peace of Cabell county. From a judgment in favor of the plaintiff for $99 the defendant appealed to the court of common pleas of that county where, upon trial before a jury, a judgment was rendered in favor of the plaintiff for $125. From that judgment, the defendant applied for a writ of error to the circuit court of Cabell county, and from the judgment of that court denying the application, this writ of error is prosecuted.
The accident forming the basis of the plaintiff's claim occurred on what is called the Krauts Creek road as the plaintiff was returning from a point in Wayne county to the city of Huntington. The accident occurred between 12 noon and 1 o'clock some time during February, 1935. The road was of gravel, the improved portion being about 18 feet wide and shoulders extending it to about the width of 24 feet. It was very icy. Parked on the right side of the road in the direction in which the plaintiff was proceeding was a truck belonging to the defendant. The testimony varies as to the exact position of this truck, but looking upon the evidence most favorably to the plaintiff, it was entirely upon the improved portion of the road. Another truck was parked just beyond that of the defendant with which the plaintiff collided and was facing in the same direction that the plaintiff was proceeding on the right side of the road. With this second truck, we are not, however, concerned. The plaintiff had just crossed a hill or "rise" which apparently had obstructed his vision of the road ahead. From the top of the hill or "rise" there was nothing to prevent his seeing everything on the road. He testifies that he did not see the truck of the defendant until he was within 25 or 30 feet of it, and that he did not try to turn out to avoid it until he was within about 20 feet of it. In turning out, or in attempting to do so, plaintiff could not control his automobile on account of the condition of the road, and the slope of the crown toward the outside from the middle. He was traveling at approximately 20 miles an hour, and his car collided with the right front side of the truck, striking the right front side of his own car and damaging his automobile to the extent of $130, according to the proof. According to the plaintiff's own admission, he could have seen the truck of the defendant when he was 150 feet away, had he been looking.
No brief is filed for the defendant in error, but recovery apparently was sought on the theory that the conduct of the defendant in having its truck parked on the public highway was in violation of section 2, article 8, chapter 17 of the Code, requiring that all vehicles not in motion be placed with their sides as near the right- hand side of the highway as practicable. As to whether the act...
To continue reading
Request your trial