Smith v. Penn Line Service, Inc.

• Decision Date: 19 January 1960
• Docket Number: No. 11056,11056
• Citation: 145 W.Va. 1,113 S.E.2d 505
• Court: West Virginia Supreme Court
• Parties: Icv SMITH, Committee, etc. v. PENN LINE SERVICE, INC. et al.

Page 505

113 S.E.2d 505

145 W.Va. 1

Icv SMITH, Committee, etc. v. PENN LINE SERVICE, INC. et al.

No. 11056.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1959.

Decided Jan. 19, 1960.

Syllabus by the Court

1. A truck parked in a parallel manner upon a state highway inside city limits, within eighteen inches of the curb, in a lane used for such parking to the right of the main traveled part of the street or highway, is lawfully parked, and the owner of such truck is not liable for injuries sustained by an occupant of an automobile which collided with the rear of the truck thus parked during the hours of darkness merely because lights were not displayed on the truck where there is sufficient light from street lights to reveal such truck for a distance of five hundred feet under normal atmospheric conditions, where such parking was not prohibited by city ordinance or state statute, there being no violation of any statute or any common law negligence upon which a cause of action can be based.

2. If a state statute is violated with regard to displaying lights upon a parked motor vehicle, which, under the law of this state would constitute prima facie negligence, no recovery can be had unless the violation of the statute is the proximate cause of the accident.

3. 'The proximate cause of an injury is the last negligent act contributing thereto, without which such injury would not have resulted.' Pt. 2, syllabus, Webb v. Sessler, 135 W.Va. 341 .

4. 'An intervening cause of an injury is a negligent act or omission which constitutes a new effective cause and which, operating independently of anything else, is the proximate cause of the injury.' Pt. 7, syllabus, Hartley v. Crede, 140 W.Va. 133 .

5. Where a truck is lawfully parked on a city street at night with sufficient light from street lights to render such truck clearly discernible to the driver of an approaching vehicle at such distance as to enable him to stop in the exercise of reasonable care and it is struck in the rear by another motor vehicle, the proximate cause of such accident is the striking of the truck by the other motor venicle, and the owner of the parked truck is not liable in damages to a guest passenger riding in the other motor vehicle.

6. As a general rule, it is necessary for the complaining party to ask for and be refused either an instruction to the jury to disregard an alleged improper argument or to move for a mistrial and duly except to such refusal to so instruct or grant said motion before this Court will consider such matter.

J. W. Maxwell, Beckley, for plaintiffs in error.

Lynch & Henderson, G. Berk Lynch, Beckley, for defendant in error.

Steptoe & Johnson, Stanley C. Morris, Charleston, amicus curii for Association of Casualty & Surety Companies, American Mutual Insurance Alliance, and National Association of Independent Insurance.

Lane & Preiser, John J. Lane and Stanley E. Preiser, Charleston, amicus curii for Wanda Carroll Armstead, an infant.

BERRY, Judge.

Icy Smith, as committee for Flora Robinson, hereinafter referred to as the plaintiff, instituted this action of trespass on the case in the Circuit Court of Raleigh County to recover for injuries sustained by plaintiff when the automobile, owned by defendant, Clarence Canterbury, and being driven by defendant, Dayton Canterbury, in which plaintiff was a guest passenger, collided with the parked truck owned by the defendant, Penn Line Service, Inc., and assigned to the custody of the defendant, J. W. Hosey, its agent and employee.

The truck belonging to the defendant, Penn Line Service, Inc., was used in its business of pruning trees along power line rights of way and is described as weighing about 6500 pounds and as having an overall length of twenty-one feet two inches, the bed thereof being twelve feet two inches in length and seven feet eleven inches overall in width, including a tool box containing pruning poles attached to and extending a distance of ten inches from the left side of the body of the truck along most of the bed. The truck was equipped with dual wheels on the rear which the bed overlapped a distance of four and one-half inches on each side. The tool box on the left side was set on a ledge at the bottom of the bed in such a fashion that it was practically all within the slight overlap at the left side of the rear wheels, as indicated by a photograph of said truck which was introduced in evidence during the trial by Penn Line Service, Inc. and Hosey and marked Defendants' Exhibit No. 7. The tool box was closed at both ends, open on one side and pruning poles placed therein were prevented from coming out by a heavy strap one foot from the rear of said box.

On the morning of February 28, 1957, the defendant, Hosey, being unable to work because of rain, parked the truck in a slight curve on Valley Drive, a public street in the City of Beckley and also a portion of West Virginia State Route No. 16. Valley Drive is described as being forty feet in width and having four lanes, the two inside lanes being twelve feet in width and the two outside lanes being eight feet in width at the outer edge of which on each side there is a curb next to a sidewalk. There was no city ordinance prohibiting parking on the street in question, and the evidence shows that the outside lanes were customarily used for that purpose and the inside lanes used for vehicular traffic. No physical obstruction to the vision of the truck existed 256 feet back of the lane in which it was parked and for 318 feet back of the right hand vehicular lane adjacent to which it was parked. In the position in which the truck was parked, the only witness, including all the witnesses who testified in the trial of the case, who said the wheels or tires on the right hand side of the truck were not against the curb, was Hughy Canterbury, a brother of the defendants, Dayton Canterbury and Clarence Canterbury, who testified on behalf of the plaintiff that it was a foot out from the curb, so under any view it was not parked in violation of the state statute requiring vehicles to be parked within eighteen inches of the existing curb in a parallel manner. If the figures of the witness, Jess Williams, who testified for the plaintiff as to an overall width of the truck being seven feet eleven inches, are correct, and the tire or wheel extended a foot from the curb, the other tire was two inches in the traveled lane, with the body of the truck six and one-half inches in the traveled lane. However, defendants' Exhibit No. 7, referred to above, properly introduced into evidence and made a part of the record in this case, indicates that the truck is not as wide as the witness stated, because the Exhibit, with the truck wheels portrayed against the curb, shows that at least eight inches existed between the left side of the truck and the twelve foot lane ordinarily used for vehicular traffic. Notwithstanding these measurements, Exhibit No. 7 indicates that the Canterbury car struck the truck owned by Penn Line Service, Inc. at least 6 1/2 inches to the right of the left edge thereof, clearly indicating that the accident occurred within the eight foot lane customarily used for parking. This fact is admitted in the final argument by an attorney for the plaintiff wherein he stated that the automobile in which the plaintiff was riding 'pushed against the mud flaps covering the left dual wheels', which is clearly shown in defendants' Exhibit No. 7.

Plaintiff, an employee of the Raleigh Steam Laundry in the City of Beckley, completed a nine-hour shift at seven o'clock in the evening on February 28, 1957. Shortly thereafter, she entered the 1949 Pontiac automobile owned by the defendant, Clarence Canterbury, but driven by defendant, Dayton Canterbury, along with three other employees of the Raleigh Steam Laundry, the plaintiff sitting on the front seat of the automobile next to the door on the right side. All of the witnesses in the Canterbury car who testified on benalf of the plaintiff stated that at the time of the accident it was raining and foggy; that visibility was poor and that they could see for only twenty-five or thirty feet in front of the car. Other witnesses, including the police officer who investigated the accident, who testified for the plaintiff, said that it was raining but that objects could be seen by them for a distance of about two hundred feet. The evidence of the defendant, Penn Line Service, Inc., shows that it was raining, but denies that there was any fog or that visibility was abnormally impaired.

It is admitted that the windshield wiper on the right side of the automobile in which the plaintiff was a passenger was not operating, and two witnesses who arrived shortly after the accident testified that the driver of the Canterbury car admitted that the left hand windshield wiper and defroster on the car he was driving were not functioning, that the windshield was covered with fog and that he could not see the truck. However, the driver, Dayton Canterbury, denies making such statements and says he does not remember stating that the windshield was covered with fog.

After the plaintiff entered the automobile driven by the defendant, Dayton Canterbury, they proceeded to Valley Drive, turned thereon, and within a few blocks the colliksion occurred, which, it was stipulated, was more than one-half hour after sunset on that day. The defendant, Dayton Canterbury, stated that the automobile he was operating was being driven at a speed of from fifteen to twenty miles an hour and that he did not see the parked truck of Penn Line Service, Inc. until after the collision. One of the witnesses, a passenger riding on the rear seat of the Canterbury car, stated that they were not driving over thirty miles an hour. After the automobile struck the rear end of the Penn Line Service, Inc. truck, it ran for a distance of about 150 feet past the truck before it was stopped. The damage to...