Twyman v. Monongahela West Penn Public Service Co.
| Decision Date | 09 March 1937 |
| Docket Number | 8480. |
| Citation | 191 S.E. 541,118 W.Va. 330 |
| Parties | TWYMAN v. MONONGAHELA WEST PENN PUBLIC SERVICE CO. |
| Court | West Virginia Supreme Court |
Submitted February 10, 1937.
Rehearing Denied June 17, 1937.
Syllabus by the Court.
1. Where a passenger alights, in safety, from a street car, at a point other than a regular stop, or at a regular stop, as designated by a custom or rule of the company operating the car, or required by a city ordinance, he must exercise reasonable care for his own safety after he has reached the street; and a failure to exercise such care is negligence on his part as will bar recovery for injuries sustained by him in crossing he street from the car to the street curb.
2. Where a street car stops at a point other than a regular stop, or at a regular stop, as designated by a custom or rule of the company operating the car, or required by a city ordinance, and a passenger steps from the car, in safety, and thereafter, without taking any precaution for his safety, attempts to cross the street from the car to the street curb, and is struck by an automobile and injured, the negligence of the passenger is the proximate cause of the injury.
Error to Circuit Court, Marion County.
Suit by Maysel Twyman against the Monongahela West Penn Public Service Company. To review a judgment for plaintiff defendant brings error.
Reversed and remanded.
James A. Meredith and Ernest R. Bell, both of Fairmont, for plaintiff in error.
Joseph B. Hearst and Victor H. Shaw, both of Fairmont, for defendant in error.
On the evening of January 19, 1935, at about 8:15 o'clock, the plaintiff, Maysel Twyman, sustained injuries when struck by an automobile operated by one Troy Mullanex, immediately after alighting from a street car operated by the defendant Monongahela West Penn Public Service Company, on a public street in the city of Fairmont. The plaintiff contends that negligence in the operation of the street car was the proximate cause of her injuries. In this suit, instituted by her to recover for such injuries, she obtained a verdict against the defendant, which the court below refused to disturb, and on which it entered judgment over the objection of the defendant, to the evening ofwhich action it prosecutes this writ of error.
The defendant operates a street railway system in the city of Fairmont, and particularly on Morgantown avenue in said city which is a part of the state highway route No. 73. The accident occurred at the intersection of said avenue and Mill street. The operation of both the street car and the automobile involved in the accident is subject to state statute, Code, 17-8-11, and certain ordinances of the city of Fairmont, being sections 17, 31, 63, 69, and 98 of Ordinance No. 68 of said city. The state statute refers to the operation of motor vehicles in passing street cars. Section 17 of the ordinance, above referred to, regulates the stopping of street cars on streets of the city; section 31 covers the operation of any vehicle approaching a street car which has stopped or is about to stop; section 63 covers the right of pedestrians to cross the streets at crosswalks at street intersections; section 69 defines the duties of pedestrians alighting from street cars; and section 98 covers the requirement that motor vehicles shall be equipped with adequate brakes. The state statute, and sections 31, 63, 69 and 98 of the City Ordinance No. 68, are relied upon by the defendant. Ordinance No. 17 is introduced and relied upon by the plaintiff. The statute and ordinances referred to, it is contended, have some relation to the question of liability in this case.
The width of Morgantown avenue at the point of the accident is 33.9 feet, and the width of Mill street at the same point is 22 feet. The street car line is located at or near the center of the avenue, and the distance from the car line to the curb on the side where the accident occurred is 14.4 feet. The street car extended beyond the car track approximately 1 1/2 feet, and the distance from the car itself to the curb was approximately 13 feet. The automobile which struck the plaintiff was of a width of between 56 and 59 inches. The street car involved in the accident was approximately 40 feet in length and of a weight of 29,700 pounds, and was operated by one employee who acted as motorman and also collected fares, and whose duty, it is contended, was to look after the welfare of passengers.
On the evening of the accident, the plaintiff boarded the street car at what is known at the High Level Bridge in Fairmont, and shortly thereafter she was joined by her sister, Susie Twyman, and a friend, Hazel Osborne. These three ladies seated themselves at or near the middle and on the right-hand side of the car. W. C. Hudgins and Oat Gibson were also passengers on the car at the time of the accident. The motorman occupied a position in the front of the car. After passing along certain streets of the city, the car was operated on Morgantown avenue, and when aproaching the vicinity of Mill street, the plaintiff rang the bell, indicating her desire to leave the car at that point. The car stopped in the vicinity of the Mill street intersection-just where is a matter of dispute-and the plaintiff left the car at the front of the same and on the right-hand side, attempted to cross the street to the curb at or near said intersection, and in so doing was struck by the automobile driven by Mullanex and injured.
The plaintiff contends (1) that the car did not stop at the intersection of Morgantown avenue and Mill street, the point where, by custom and by requirement of the ordinance of the city, it should have stopped; (2) that the car stopped suddenly or instantly under such conditions as misled the driver of the automobile which caused the direct injury to plaintiff; (3) that the motorman in charge of the street car was negligent in failing to warn her of the danger to which she was subjected in crossing the street at that particular point; and that the proximate cause of her injury was the negligent acts of the defendant, enumerated above. On the other hand, the defendant contends (1) that the street car was stopped in the regular place, at the intersection of Morgantown avenue and Mill street, both in compliance with the custom and rules of the company and with the ordinance of the city; (2) that the injury to the plaintiff was the result of the negligent acts of Mullanex, who operated the automobile which struck the plaintiff, and that the negligence of Mullanex relieved the defendant of liability; and (3) that the negligence of the plaintiff in leaving the car, and in attempting to cross the street to the curb, without taking precautions to ascertain whether or not an automobile was approaching, was such as to bar recovery on her part against the defendant.
These questions being presented, it is apparent that there must be a consideration of the facts bearing upon three points: (1) Where and in what manner was the street car stopped; (2) the conduct of Mullanex in respect of the operation of the automobile driven by him; and (3) the conduct of the plaintiff when she alighted from the street car and attempted to cross the street to the curb. These questions will be taken up in the order mentioned.
There is serious conflict in the testimony as to where the street car stopped. Four witnesses, introduced by the plaintiff, say that the car stopped on what is called the far side of Mill street, at or near a light post, and approximately 7 feet beyond the far side of Mill street from the point where it is contended the car should have stopped; two witnesses, introduced by the plaintiff, testify that the car stopped at some point on Morgantown avenue covered by the intersection of Mill street; one witness saying it stopped about halfway across the street, and another, that it stopped about two-thirds the distance across said street; four witnesses, introduced by the defendant, testify that the street car stopped at the intersection of Morgantown avenue and Mill street at the usual stopping place, or what is termed in the evidence the near side. Those who testify for the plaintiff are Troy Mullanex and his wife, Margaret Mullanex, Ralph E. Perkins, brother-in-law of the plaintiff, Susie Twyman, her sister, Hazel Osborne and Oat Gibson. Those who testify for the defendant are Homer C. Blosser, its motorman and employee, W. C. Hudgins, and two young ladies, Lena Anselene and Rita Anselene. The testimony shows that the plaintiff was found, after the accident, near the curb on the far side of Mill street, and one witness testifies that she was propelled or dragged across Mill street, from which the defendant argues that she must have been struck by the automobile at some point between where the plaintiff alighted from the street car and the place where she was found after the accident, and it contends, vigorously, that it could not have been possible that the plaintiff could have been struck at any point beyond the far intersection of Morgantown avenue and Mill street.
Of the witnesses who testify for the plaintiff, as to where the car stopped, Mullanex and his wife were in the automobile which struck the plaintiff; Susie Twyman and Hazel Osborne were on the street car with the plaintiff, and alighted therefrom shortly after the accident; Oat Gibson was a passenger on the street car; and Ralph Perkins, who did not see the accident but arrived immediately thereafter, testifies as to the place where the car stopped. Of the witnesses who testify for the defendant, Homer C. Blosser was the motorman; Hudgins was a passenger on the car, seated near the front thereof; and the two Anselene girls were standing on Morgantown avenue, near the...
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