Smith v. Gould, (No. 6942)

• Decision Date: 09 June 1931
• Docket Number: (No. 6942)
• Citation: 110 W.Va. 579
• Court: West Virginia Supreme Court
• Parties: Dewey Smith, Adm'r., Etc. v. P. B. Gould

110 W.Va. 579

Dewey Smith, Adm'r., Etc.

v.P. B. Gould

(No. 6942)

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1931.

Decided June 9, 1931.

1 Automobiles

The last clear chance doctrine is properly extended to a case where an automobilist, by reason of failure by him in his plain duty to maintain a lookout for the persons and property of others on the highway, commensurate with the danger indicated by attendant facts and surrounding circumstances known to him, and which are such as to have put him on the alert, causes injury to another (though such other was himself concurrently negligent), where the peril should have been seen and comprehended by the automobilist and the injury avoided in the exercise of reasonable care commensurate with the situation. Such case constitutes an exception to the general rule which precludes recovery by a plaintiff whose negligence has concurred with the defendant's.

2. Appeal and Error

Testimony volunteered by a witness in a damage action against an automobilist for personal injuries, to the effect that the defendant was protected by indemnity insurance, is not reversible error where it clearly appears that counsel for the plaintiff did not solicit such testimony and could not have anticipated the objectionable answer of the witness, and where the court instructed the jury to disregard it. Ambrose v. Young, 100 W. Va. 452.

Hatcher, Judge, dissenting.

Error to Circuit Court, Upshur County.

Suit by Dewey Smith, administrator of the estate of Rebecca Smith, deceased, against P. B. Gould. Judgment for the plaintiff, and the defendant brings error.

Affirmed.

Young & McWhorter, for plaintiff in error. A. Jerome Dailey, Lycurgus Hyre and H. Boy Waugh, for defendant in error.

Maxwell, Judge:

This suit is the outcome of an unfortunate automobile accident which occurred on the afternoon of March 18, 1929, on the main state highway between Buckhannon and Weston. Plaintiff's decedent, Rebecca Smith, traveling toward Buckhannon on a regular passenger bus had alighted from the bus on the right-hand (south) side of the road, and after having walked back along-side of the bus on the edge of the road, she had started across the road in the rear of the bus, when she was struck by defendant's car which he was driving toward Weston, whereby she was injured so severely that she died enroute to the hospital. The trial in the circuit court lesulted in a verdict and judgment for plaintiff for $4,000.00. Defendant prosecutes this writ of error.

The highway at the point of the accident was straight for several hundred yards and had a sixteen foot concrete surface with a berm on each side. Houses flanked the road at irregular intervals, making the section a suburban one. Mrs. Smith's evident intention was to cross the road for the purpose of going to her home which was on a side road which intersected the highway at that point. The evidence is conflicting as to whether the bus stopped exactly opposite this intersecting road or had proceeded by it for a few feet in the direction of Buckhannon. There is also a conflict as to whether Mrs. Smith walked across the highway directly behind the bus or whether she walked back some distance from the rear of the bus before crossing. The jury was warranted in believing from the evidence that she pursued the latter course. The evidence preponderates that she had almost reached the other side of the road when she was struck by defendant's car.

Several men, proceeding toward Buckhannon in an automobile following the bus at a short distance, saw the accident and testified at the trial. Their evidence is uncontradicted that Mrs. Smith did not look to her right, the direction from which the defendant was approaching. The bus having immediately resumed its journey toward Buckhannon, there was nothing to have obstructed Mrs. Smith's view of defendant's approaching automobile had she looked in that direction. Two of these witnesses say that the defendant's automobile was from 40 to 50 feet away from Mrs. Smith when she reached a point approximately in the middle of the road. The testi- mony as to these two matters, first that the defendant's automobile was 40 to 50 feet from Mrs. Smith when she stepped out into the highway, and, second, that defendant's automobile could have been stopped in about its length, is preponderating, therefore, they will be dealt with as proven facts.

Defendant himself testifies that when he reached a point about six hundred feet from the bus, he noticed someone alighting from the bus, and that it was so far away that he thought the person was a school girl. He says that he kept watching to see what she was going to do, but as he drew near the bus his attention was attracted to an oncoming car and then he did not again see her until his wife who was riding with him screamed, and then it was too late to avoid striking the deceased. How defendant could have failed to see Mrs. Smith if, as he says, he was watching an oncoming car, it is difficult to see, for she would be almost directly in his line of vision. He further states that he was driving at the rate of about 20 miles an hour, and in this he is corroborated by a preponderance of the evidence; that he did not slacken the speed of his automobile in the least when he saw the parked bus and the passenger alighting or as he approached the point where the passenger had alighted; and that he sounded no signal until it was too late. A truck driver who was following closely behind defendant's car says that he saw the parked bus and the passenger alight and, after walking back on the berm for 40 or 50 feet, start across the highway, and furthermore, that he stopped his truck before the accident occurred. The testimony of this witness seems to establish the fact that had defendant been looking he could have seen Mrs. Smith in ample time to avoid the accident.

Defendant was inexcusably negligent in the manner in which he approached the point where the accident occurred. He saw the bus; he saw that the bus had stopped and that someone had alighted. He says he knew there was not much likelihood that the passenger who had been discharged from the bus would leave the road from the south side because there was a ditch and an embankment there. He lived in that general community, and knew that people lived along the intersecting road on the opposite side of the highway. Yet he did not keep a close observation of the road immediately beyond the rear of the bus. The jury was warranted in believing from the evidence (we think a clear preponderance) that the bus started forward after the deceased had alighted therefrom and proceeded on its way as she was walking along the berm in the opposite direction. Defendant further admits that he neither slackened the speed of his car nor sounded an alarm. As a consequence of all of which he was too close upon Mrs. Smith to avoid hitting her when her presence in the traveled portion of the highway became known to him through the information which he received from his wife. He further admits that he probably would not have seen the deceased immediately before striking her had not his wife given alarm.

It may be accepted as settled law that the driver of a motor vehicle is not ordinarily liable for injury to a person who suddenly steps into the path of such moving vehicle from the shelter of a standing vehicle or some other stationary object. Brien v. Gordon, (Pa.) 34 A. L. R. 1511; Jean v. Nester, (Mass.) 158 N. E. 893; Pierce v. Horsman, (Ky.) 256 S. W. 397. Defendant says that such was the manner in which the accident at bar occurred, and he contends that under the principle of law stated there is no liability upon him by reason of the accident. There being ample evidence to support the plaintiff's theory that the deceased did not start across the road immediately in the rear of the bus but that she proceeded along the edge of the road for 25 or 30 feet before starting across, we must, in the light of the verdict for the plaintiff, consider the case in that light. But, even so, in failing to look to her right before she stepped out into the line of traffic she failed to exercise due care for her own safety. Does her negligence preclude her administrator from recovery?

True, as a general rule, contributory negligence on the part of an injured person precludes relief in damages; and concurring negligence on the part of a plaintiff and defendant at the instant of a collision ordinarily bars recovery. The rule as to concurring negligence is particularly applicable in cases where there has been something to put the injured per- son on guard after lie has placed himself in a position of peril, as in the case of Waller v. By. Co., 108 W. Va. 576, which is illustrative of the legal point though not involving an injury inflicted by an automobile. There the automobile in which the deceased was riding had become stalled on a railroad crossing. He and his companions did not even then look for an approaching train though there was ample time to have seen it and to have gotten out of the way though the automobile could not then be moved. See also Keller v. Bailway Co., 109 W. Va. 522, 156 S. B. 50. Concurring negligence is of course but a phase of contributory negligence.

It is not to be understood, however, that the salutary, sensible and practical doctrine of contributory negligence, stands as adamant, immovable, unalterable and relentless. It is not a rule of iron. It carries with it an exception or qualification which is as well grounded in American and English jurisprudence as is the rule itself. In fact the qualification not only proves the rule but vitalizes and humanizes it, This is known in the law as the doctrine of last clear chance. It has many variations, and much confusion has been evidenced in the extended and manifold discussions of the same. The base of the rule is this: A plaintiff who has negligently placed himself or his property in a situation of...