Skaff v. Dodd
| Decision Date | 21 October 1947 |
| Docket Number | (No. 9932) |
| Citation | 130 W.Va. 540 |
| Parties | Frank Skaff v. Henry Dodd, et al. |
| Court | West Virginia Supreme Court |
Under an ordinance of a municipal corporation, giving pedestrians the right to proceed across a street within any cross-walk, marked or unmarked, on a "go" signal from a traffic light, a "cross-walk" is the extension of the sidewalk lines over streets at street intersections.
Under a municipal ordinance providing (1) that every pedestrian crossing a roadway at any point other than a crosswalk shall yield the right of way to all vehicles approaching upon the roadway; and (2) that every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, there arises a duty upon the pedestrian crossing the street at a place other than a cross-walk to use reasonable care for his safety, and a concomitant duty upon the driver of a vehicle passing along the street at the place where the pedestrian is crossing to use like care to avoid colliding with and injurying such pedestrian.
Disregard of the requirements of a traffic statute or ordinance is prim, a facie actionable negligence, when it is the natural and proximate cause of the injury, and where in an action for personal injuries the. evidence conflicts on the question of proximate cause, such question is one of fact for the jury.
In this jurisdiction a pedestrian does not have the burden of looking any certain number of times before crossing the street or highway, and if the way appears clear and the crossing is not prohibited by a traffic light, signal, statute or ordinance, whether he exercised reasonable care in looking before proceeding to cross, is a jury question.
An instruction in an action to recover for personal injuries which tells the jury that, if it should find for the plaintiff, it is at liberty to consider the earning capacity of plaintiff before the injury as compared with his present earning capacity and does not submit to the jury the question whether the difference, if any, was the result of the alleged injuries, is incomplete and prejudicial.
In an action for personal injuries, the refusal of an instruction which provides, in part, that the jury should find for defendant if plaintiff's negligence contributed in any way to plaintiff's injury and qualifies the words "in any way" by the word "proximately," or similar qualifying word or words, is prejudicial error.
Error to Circuit Court, Kanawha County.
Action by Frank Skaff against Henry Dodd and another for injuries sustained when struck by defendants' pickup truck. Verdict and judgment for plaintiff, and the defendants bring error.
Jiqdgment reversed; verdict set aside; new trial awarded.
Kay, Casto & Amos and Vincent V. Chaney, for plaintiffs in error.
P. G. Meador, for defendant in error. Riley, Judge:
In this action of trespass on the case to recover damages for alleged personal injuries, instituted in the Court of Common Pleas of Kanawha County, the plaintiff, Frank Skaff, was awarded a judgment based upon a jury verdict in the amount of twenty-five hundred dollars against the defendants, Henry Dodd and The Automotive Parts Company, an Ohio corporation, to which judgment the Circuit Court of Kanawha County refused a writ of error and supersedeas on the ground that the judgment of the court of common pleas was plainly right. To the judgment of the circuit court defendants prosecute this writ of error.
Upon the trial in the court of common pleas, defendants under a plea of the general issue presented the defenses of: (1) lack of actionable negligence on the part of defendants; and (2) contributory negligence on plaintiff's part.
On January 5, 1946, about 8:45 in the morning, the plaintiff Skaff was severely injured when he was struck by a half ton pickup truck driven by defendant Dodd and owned by defendant, The Automotive Parts Company, on Virginia Street in the City of Charleston, some eighteen or twenty feet west of its intersection with Summers Street. The width of Virginia Street at that point is thirty-two feet from curb to curb, the concrete for the street having been poured in such manner as visibly to divide the surface into three well defined strips, the center strip being eleven feet wide, and those on each side ten and one-half feet. Although these concrete strips are referred to in the record as "lanes," there were no actual traffic lanes or cross-walks marked upon the surface of the street. So far as the record discloses at the time of the alleged injury, the intersection was controlled by electric traffic lights installed on all four corners of the intersection of the two streets'.
Shortly prior to the injury plaintiff had boarded a bus of Charleston Transit Company for the purpose of travelling to his place of employment, which was located on the north side of Virginia Street about forty feet west of the intersection heretofore noted. The bus, proceeding east on Virginia Street, was brought to a stop at the southwest corner of Virginia and Summers Streets for the purpose of discharging and taking on passengers. According to the record, it had stopped parallel to, and about one foot north of, the southern curb of Virginia Street, with its front flush or almost flush with the curb line of the sidewalk on the western side of Summers Street.
At the time the bus stopped, the line of traffic following, including a beer truck and a pickup truck heretofore mentioned, also stopped, all vehicles in the line at that time being in the strip or "lane" on the south of Virginia Street. The bus was thirty-two feet long and eight feet wide; the beer truck was twenty-eight feet long and six feet, seven inches wide.
Plaintiff Skaff alighted from the door at the right front of the bus, stepping out on the sidewalk. He walked west on the sidewalk paralleling Virginia Street until he had passed the rear end of the bus. There he stepped from the sidewalk into the street, preparatory to crossing the same. As he reached and stepped out into the open portion of the street he was struck by the pickup truck.
The defendant Dodd testified that when the bus stopped to discharge and take on passengers, he stopped his truck and upon seeing the traffic light at the intersection turn green, he pulled out of the line of traffic into the center of the street and proceeded around the beer truck and passed the bus at six to eight miles an hour and then proceeded east on Virginia Street across Summers Street. It was while defendants' truck was passing the space between the beer truck and the rear of the bus that plaintiff was struck.
It is not clear from this record whether defendants' truck was immediately behind or several cars behind the beer truck, and the record conflicts on whether Skaff looked in both directions or just in the direction of the traffic light immediately before stepping from the space between the beer truck and the bus; and likewise the evidence conflicts as to whether the traffic light controlling the movement on Virginia Street was red or green at the time defendants' truck pulled out of the line of traffic for the purpose of crossing the intersection. The speed of the truck is variously estimated in the record from a minimum of six to eight miles an hour to a maximum of thirty-five miles an hour, but it seems clear from this evidence that the place where plaintiff was crossing Virginia Street at the rear of the bus, was west of the extension of the curb lines of the western sidewalk on Summers Street, for from the position of the bus as it was stopped, with the thirty-two foot length thereof taken into consideration, plaintiff was necessarily struck a number of feet west of the westerly lateral line of the western sidewalk of Summers Street if extended across Virginia Street.
Several pertinent ordinances of the City of Charleston dealing with motor vehicles and traffic were introduced at the trial. Section 33 of Chapter 18 of the ordinance provides, in part: "No person shall drive a motor vehicle upon any street or highway within the city at a speed in excess of that indicated for particular districts or locations, as follows: Passenger vehicles and trucks less than 2 tons loaded capacity: * * * In business and congested districts 20 M.P.H.; at intersections in business and congested districts 15 M.P.H. * * *; when passing busses while loading or unloading 8 M.P.H." Section 19 of the same chapter provides in part:
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...of a statute or an ordinance is prima facie actionable negligence when it is the proximate cause of an injury. Skaff v. Dodd, 130 W. Va. 540, 44 S. E. 2d 621, decided at this term; Oldfield v. Woodall, 113 W. Va. 35, 166 S. E. 691; Tarr v. Keller Lumber and Construction Co., 106 W. Va. 99, ......
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