Slater v. Shirkey
| Decision Date | 07 May 1940 |
| Docket Number | (No. 9049) |
| Citation | 122 W.Va. 271 |
| Court | West Virginia Supreme Court |
| Parties | Luke Slater, Admr. v. H. A. Shirkey and John Shirkey |
Automobile
Where the doctrine of last clear chance does not apply, recovery will be denied in an action by the personal representative of one struck by an automobile, on a public highway and killed, where the evidence and circumstances show that the deceased suddenly stepped from behind a standing vehicle into the path of a moving vehicle. Such act of the decedent constituted negligence as a matter of law.
Error to Circuit Court, Kanawha County.
Action by Luke Slater, administrator of William Henry Pritt, deceased, against H. A. Shirkey and John Shirkey, to recover for the death of William Henry Pritt, deceased, when he was struck by an automobile. To review a judgment in favor of the plaintiff, the defendants bring error.
Reversed and remanded.
Kay, Casto & Amos and Vincent V. Chaney, for plaintiff in error.
John T. Copenhaver and L. Steele Trotter, for defendant in error.
William Henry Pritt was killed when struck by an automobile owned by H. A. Shirkey, and operated by his son, John Shirkey, on August 28, 1938. In an action instituted by Luke Slater, as administrator of the deceased, to recover damages for his death, in the Court of Common Pleas of Kanawha County, a trial was had resulting in a verdict for the plaintiff against H. A. Shirkey and John Shirkey, on which the court entered a judgment. This judgment was affirmed by the Circuit Court of said County, and the defendants below now prosecute their joint writ of error thereto. The parties will be referred to as they stood in the courts below.
Counsel for the defendants base their case on the single contention that the record shows that plaintiff's decedent was, at the time of the accident which caused his death, guilty of contributory negligence as a matter of law, and that by reason thereof no recovery can be had in this action, thereby conceding the negligence of the driver of the automobile. This requires an inquiry into the evidence and circumstances developed upon the trial of the case.
The accident in question occurred between Charleston and Sissonville, about ten o'clock in the morning. The day was bright and clear. Plaintiff's decedent was riding in a milk truck with the driver thereof and a man by the name of Young, and was seated between the driver and Young. The milk truck was being driven in the direction of Sissonville. When they reached a point on route 21 referred to as Spring Branch, where a dirt road known as the Tolley Hollow road intersects the highway, the truck was stopped on the right side thereof to permit decedent to alight. The truck was parked partly on the paved portion of the highway, which pavement at that point was sixteen feet in width, and partly on the berm, the evidence disclosing that the body of the truck was within three or four feet of the center of the highway. Young opened the truck door, stepped from the truck, and decedent alighted. He then proceeded to the rear of the truck and walked toward the center of the highway. When the decedent passed from behind the truck and into the open highway, as two witnesses testify, he did not look for approaching traffic until he had reached the middle thereof. Other witnesses say he reached the center of the highway and looked. At that time he apparently saw the car driven by John Shirkey approaching at high speed, and in the excitement of the moment, he leaped into the path of the oncoming car instead of stepping back, and the evidence discloses that he was struck by the Shirkey car about the time his feet reached the pavement, indicating, of course, that the car was very near to him at the time he made his leap. The truck with its body and contents was about six feet high, and effectually covered the movements of the decedent while he was behind the same.
There is very little contradiction in the testimony. There were seven eye-witnesses to the accident; four of these resided in a house up on a bank and saw the accident from that point. They were introduced by the plaintiff, and their testimony does not conflict with the statement of facts above. F. E. Miller, a witness for the defendants, was driving along this highway in the direction of Sissonville and in the rear of the truck. He saw the decedent pass behind the truck, and walk into the highway, and his version of the accident is not different from the witnesses who saw it from the residence. However, he says that he saw the Shirkey car when it was some one hundred and fifty feet from the parked truck, and seeing at the same time that the decedent was walking from behind the truck toward the center of the highway was led to believe that there was danger of an accident. There is some slight confusion as to just where the decedent was when Miller first saw him, and when he saw the Shirkey car approaching, but we do not think his testimony, or the physical facts, justify the belief that the Shirkey car could have been as much as a hundred and fifty feet away when the decedent stepped into the open highway, for the reason that instantly after the decedent saw the Shirkey car he was struck by it. It should be here stated that the doctrine of last clear chance is not involved; no contention is made with respect thereto, nor do we think any could be maintained under the evidence.
The other eye-witnesses were John Shirkey and his aunt. Shirkey was operating the automobile which struck the decedent. He was driving his aunt from a point near Sissonville to Charleston. They both testified that decedent suddenly appeared from the end of the parked truck into the road and path of their automobile, and that the accident happened instantly after they first saw decedent. Shirkey says that the front end of his automobile had about reached the middle of the parked truck when decedent came out from behind it. He applied his brakes,...
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