Stogdon v. Charleston Transit Co.
| Decision Date | 05 December 1944 |
| Docket Number | 9580. |
| Citation | 32 S.E.2d 276,127 W.Va. 286 |
| Parties | STOGDON v. CHARLESTON TRANSIT CO. |
| Court | West Virginia Supreme Court |
Spilman Thomas & Battle, H. R. Klostermeyer, and J. Howard Hundley, all of Charleston, for plaintiff in error.
J Blackburn Watts, L. F. Poffenbarger, and Martin C. Bowles all of Charleston, for defendant in error.
This action was brought in the Circuit Court of Kanawha County by W. E. Stogdon, administrator of the estate of Albert Lee Stogdon, against the Charleston Transit Company for the purpose of recovering for death by wrongful act on the part of the defendant. On motion of the plaintiff the trial court set aside a verdict for the defendant and awarded the plaintiff a new trial, for the reason, as shown by his written opinion, made a part of the record, that instruction fourteen, given on behalf of the defendant over the plaintiff's objection, submitted to the jury the question of whether plaintiff's decedent, at the time of the collision resulting in his death, was engaged in a joint enterprise with the driver and other occupants of the car in which he was riding, so that any negligence of which the driver was guilty at the time could be imputed to him and thus bar recovery, the court being of the opinion, after studying a full transcript of the testimony, that the evidence would not sustain a finding to the effect that plaintiff's decedent was a participant in a joint enterprise at the time of the fatal injury. Plaintiff in error, defendant below, took the position that the giving of defendant below's instruction number fourteen concerning contributory negligence was not prejudicial, even though erroneous, because of the failure of the testimony of plaintiff below to establish negligence of any sort on the part of the defendant. The transit company took the further position that if the proof does justify submitting the case to a jury and admitting that there is no controversy concerning the material facts relevant to the question of joint enterprise, that question was properly submitted to the jury because divergent inferences necessary to a correct conclusion could be drawn by reasonable minds from the facts proven. In this state of the record it is necessary that we outline the surrounding circumstances, particularly the relationship of the occupants of the Stogdon car at the time of the collision, as disclosed by the record before us.
William E. Stogdon, the father of the decedent and of four of the other five occupants of the car at the time of the accident lives in Sissonville, a town fourteen miles north of Charleston on U.S. Route 21, locally known as the "Sissonville Road", where he operates a service station. He owned, for family use, a five-passenger Chevrolet automobile, which was most frequently used by the persons who occupied the car at the time of the collision. These were his daughter, Mildred Stogdon, age twenty-six; his sons, William E. Stogdon, Jr., age twenty-one; Albert Lee Stogdon, age seventeen; Homer Stogdon, age fifteen and Robert Stogdon, age thirteen, usually accompanied by Ray Elswick, Jr., a neighbor, age fifteen. It was their custom to use the car in a drive to Charleston on Saturday night, it not being necessary for them, or any of them, to obtain permission, they "just used it any time they got ready to go", although W. E. Stogdon, Jr. was the only one of them who could drive. On the Saturday night in question they left their home at about seven o'clock, Junior driving, Mildred sitting next to him on the front seat and Albert at the far right. Ray Elswick, Jr. was on the back seat on the left, Robert Stogdon in the middle, and Homer Stogdon on the right. The object of the trip was to permit the three younger children on the back seat to go to a moving picture at the West Theatre located on Washington Street West, being the street on which Route 21 goes through the City of Charleston east and west, and to permit Albert to buy a coat and Mildred to make some purchases. Albert and Mildred were not driven to their ultimate destination, which was the principal business district of Charleston, but left the car, along with Junior, where it was parked on Walnut Street, going by bus to do their shopping. Before leaving the car it was understood by them all that Junior would get the car and pick up the three younger children at eleven o'clock in front of Goff's Drug Store on Washington Street near the West Theatre, and would then go to the Custer Theatre to meet Albert and Mildred, where it was understood they would then be. This they did, occupying the same positions in the car that they had coming into Charleston. It seems that Junior had no definite purpose in coming to Charleston on that particular evening other than to loaf. This he did by going to two beer parlors, meeting a num ber of friends from Sissonville and drinking some beer. He and his friends then went in the car to a bowling alley on Kanawha Boulevard, near Patrick Street, where he stayed until he started home. The testimony concerning the amount of beer that he drank is conflicting.
The declaration is in two counts, the first being based upon the violation of an ordinance of the City of Charleston and the second upon negligence coupled with the violation of a statute. The alleged ordinance was not introduced.
The collision took place just east of the intersection of "B" Street with West Washington Street, the bus of the defendant having stopped in the middle of the street just west of "B" Street to permit passengers to alight and having started east and gone between fifty and sixty feet before the impact. At the moment of the collision it could not have been going faster than fifteen miles an hour, and due to the fact that the driver had applied his brakes either simultaneously with or just preceding the collision, some witnesses thought that the bus was standing still. The Stogdon car, which at that time was proceeding west at a speed variously estimated and calculated to have been between twenty-five and sixty miles an hour, struck the left front of the bus with its left side so violently that its frame and bumper back to its left front wheel were forced under the left front corner of the bus so quickly that its driver was unseated. All of the occupants of the Stogdon car were injured, Mildred and Albert both being killed.
The front of the bus had been knocked off its course so that its forward end was facing diagonally to its left and toward the north or hill side of West Washington Street from beyond its left side of the street "center." The Stogdon car had been turned towards its left, so that it faced diagonally in the opposite direction with the bus and its rear had been forced against the north or hill side of West Washington Street where there is no sidewalk.
There is a great deal of detailed evidence in this record resting upon the question of negligence which we believe to be immaterial upon review and which we think unnecessary to recite.
Code, 17-8-4, reads as follows: "An operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center of the highway so as to pass without interference." At the end of the plaintiff's proof, the defendant moved that the plaintiff be required to elect whether he sought recovery under the statute or under the ordinance. This the circuit court declined to require because, in its opinion, the provisions being identical, the same set of facts that would give rise to the right of recovery upon one would create the same right under the other, and consequently the plaintiff had the right to submit both to the jury. The ordinance not having been proved, it was not error to decline to require an election because there could have been no recovery under the unproved ordinance.
We will first consider the matter of primary negligence on the part of the defendant. There seems to be no controversy concerning the fact that at the time of the collision the bus had just let out passengers on the west side of "B" Street, where it stopped in the "center" of Washingon Street in a position where its left front and rear wheels were both north of the middle line of that street. At the time of the collision it had proceeded east not more than sixty feet and had not changed its direction, with the consequence that it was in the middle of the street when the bus and car collided. Upon its left or north there was an open and unobstructed space in the street estimated to have been twelve feet, with room for the Stogdon car to have safely passed. Defendant contends that that being so it was contributory negligence for the driver of the Stogdon car not to take advantage of what it contends was a plain opportunity of safety. Defendant assigns as a reason for the bus being in the middle of the street the fact that parking was permitted on the bus's right side, and when there were vehicles parked on that side of the street those going east were forced to travel in the middle of the street. According to defendant's contention, that practice gave rise to the custom of vehicles going east on Washington Street traveling in a lane outside the space allotted to parked vehicles at all times. To this the plaintiff replies by saying that the proof shows that there were no vehicles parked on the right of the bus within more than a hundred feet and that there are no exceptions named in the statute upon which it relies. Impossibility of compliance with a regulatory statute excuses performance; customary non-compliance cannot.
Under these circumstances we do not feel that we can say, as a matter of law, that the evidence of the plaintiff entirely failed to show a breach of legal duty incumbent upon the...
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