Stamper v. Bannister

• Decision Date: 14 February 1961
• Docket Number: No. 12021,12021
• Citation: 118 S.E.2d 313,146 W.Va. 100
• Court: West Virginia Supreme Court
• Parties: Daisy STAMPTER, Administratrix of the Estate of Preston Park Stamper, v. Lillian Deremo BANNISTER.

Page 313

118 S.E.2d 313

146 W.Va. 100

Daisy STAMPTER, Administratrix of the Estate of Preston Park Stamper, v. Lillian Deremo BANNISTER.

No. 12021.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1961.

Decided Feb. 14, 1961.

Syllabus by the Court.

1. Pedestrians and operators of vehicles on public highways have equal rights, unless otherwise provided by law, and each should observe the rights of the other.

2. Where a plaintiff is guilty of negligence by placing himself in a situation of imminent danger, if a defendant by the exercise of reasonable care could have avoided such injury, the negligence of the former will not bar recovery.

3. If the way appears clear to a pedestrian, he may proceed to cross a street or highway, and whether or not he is guilty of negligence in so doing is generally a question of fact for jury determination.

4. In actions for wrongful death, if the distributee or distributees of the decedent will suffer or have sustained a loss, such as where they are liable for or have paid medical, hospital and funeral expenses, or the estate of the decedent is diminished by the payment of same and its distribution to them has been diminished, evidence of such elements of damage is admissible in such actions.

William F. Carroll, E. Franklin Pauley, Charleston, Thomas E. Myles, Fayetteville, for plaintiff in error.

Mahan, White, Higgins & Graney, Fayetteville, for defendant in error.

BERRY, Judge.

The plaintiff, Daisy Stamper, Administratrix of the Estate of Preston Park Stamper, deceased, instituted an action for the wrongful death of her husband, hereinafter referred to as plaintiff's decedent, against the defendant, Lillian Deremo Bannister, in the Circuit Court of Fayette County, and at the conclusion of plaintiff's evidence in the trial of the case in said Court a verdict was directed in favor of defendant and judgment entered on the verdict on August 17, 1959. Upon application to this Court, a writ of error and supersedeas was granted to said judgment on March 1, 1960.

The action arose out of an automobile accident which occurred on U.S. Route 60 in Kanawha County, West Virginia, near the Town of Malden on May 6, 1958. The plaintiff's decedent resided in the George's Creek community which is near Malden, but on the opposite side of U. S. Route 60.

On the day of the accident, plaintiff's decedent left his home on George's Creek around 7:30 a. m. to go to Malden to get the mail. In order to get to the post office in Malden it was necessary for him to cross U. S. Route 60. There was an under-pass with a sidewalk near the scene of the accident, and also a well worn path which crossed over the highway which was used by persons going to and from George's Creek and Malden. It was apparently more convenient to use the path going over the highway than to use the underpass; consequently, the path was frequently used by persons going to and from Malden and George's Creek. The highway, U. S. Route 60, on which this accident occurred, is heavily traveled. It is a four lane highway, with two lanes for westbound traffic going toward Charleston and two lanes for eastbound traffic traveling toward the Town of Belle. There is a 4 foot island between these two lanes.

At the time the accident occurred, about 7:45 a. m. on May 6, 1958, the defendant was driving her automobile in the west-bound traffic lane in the direction of Charleston, and was followed by cars driven by two witnesses who were also proceeding toward Charleston. There was a mist or haze at this time, although it was not raining and the highway was not wet.

The underpass at Malden and The Malden interesection into Route 60 are near the point where the path, upon which the plaintiff's decedent was walking, entered the highway. From this point to the top of a hill, in an easterly direction from the intersection and path, is a distance of about 800 feet, with an unobscured view, and there is a double white line marked on the highway between the two lanes fo westbound traffic. Not only was there a clear view doen the highway from the top of the hill to the place of the accident, but a person traveling on the highway toward Charleston in a westerly direction could see for several feet off to the right of the highway at the intersection and to where the path approached the highway. None of the plaintiff's witnesses testified that they saw the plaintiff's decedent enter the highway. The defendant did not testify in this case. The plaintiff's witnesses were driving automobiles behind defendant's car, and, of course, did not have the clear view ahead that defendant had. According to plaintiff's witnesses the defendant was driving about 40 miles per hour at the time of the accident and was not exceeding the speed limit. These witnesses testified that the defendant drove her automobile gradually to the left about 100 feet from the point of impact and crossed over the double white lines and into the westbound passing lane, striking the plaintiff's decedent when he was about in the middle of the inside passing lane. The defendant's brake lights were noticed by the witnesses following when she was crossing over the double white lines; and for a split second before the plaintiff's decedent was struck, he was observed facing defendant's vehicle in the center of the left hand, or inside, lane. The westbound traffic lanes were about 25 feet in width from the island to the berm and the eastbound traffic lanes were about 22 feet in width from the island at the place where the accident occurred. When plaintiff's decedent was struck he was thrown up in the air across the 4 foot island and into the middle of the eastbound traffic lanes, or for a distance of approximately 20 feet. He received serious injuries and died as a result thereof two days after the accident.

Plaintiff's decedent was unemployed at the time of the accident and had been for about one year. He had been crippled previously by virtue of the loss of half of his left foot. An attempt was made by the plaintiff to have the medical, hospital and funeral expenses admitted as elements of damages, but the trial court ruled that they were not admissible as such.

The plaintiff's decedent had as much right under the law to use or cross the highway as the defendant had in driving her vehicle over said highway. Their rights were equal and mutual and each should have observed the rights of the other. Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, 51 L.R.A.,N.S., 989, Ann.Cas.1916E, 656. The plaintiff's decedent, according to the record of this case, had approached and entered U. S. Route 60 from the north side, or to the defendant's right, and had walked approximately three-quarters of the way across the westbound traffic lanes of said highway to the center of the left or passing lane, when he was struck. In other words, he had walked a distance of about 19 feet into and across the westbound traffic lanes of the highway at this time. This would have required several seconds in any event, and if the defendant's automobile was traveling at a speed of 40 miles per hour, as indicated by the record, she would have been several hundred feet away from the plaintiff's decedent when he first walked upon the highway. There was no vehicle or other obstruction in front of the defendant, and even with a mist of haze being present, she should have observed the plaintiff's decedent upon the highway several seconds before he was struck. There is no evidence that the mist or haze was heavy, but if it was and reduced the defendant's vision, she had the duty to reduce her speed accordingly. Thus, by the exercise of ordinary care, she might have been able to control her car in such a manner so as to have avoided striking plaintiff's decedent.

One of the witnesses who was traveling behind defendant's car stated that he saw her gradually drive to the left and cross the double white lines before striking the plaintiff's decedent. Had the defendant continued to drive in the right lane or driving lane, instead of crossing the double white lines into the passing lane, the accident might have been prevented. Then, too, the plaintiff's witness testified that for a split second before plaintiff's decedent was struck, he saw him facing the defendant's car, and if the plaintiff's decedent had been in such a position for a sufficient length of time, it may have been possible for the defendant to turn her car back to the right and for her to have avoided striking plaintiff's decedent. Even if the plaintiff's decedent was guilty of negligence by placing himself in a situation of imminent danger, if the defendant, by the exercise of reasonable care could have avoided striking him, the negligence of plaintiff's decedent would not bar recovery in this case. Deputy v. Kimmell, supra; Smith v. Gould, 110 W.Va. 579, 159 S.E. 53, 92 A.L.R. 28; Meyn v. Dulaney-Miller Auto Co., 118 W.Va. 545, 191 S.E. 558.

The law in this state is that if the way...