Vaughan v. Oates
| Decision Date | 05 March 1946 |
| Docket Number | 9761. |
| Citation | 37 S.E.2d 479,128 W.Va. 554 |
| Parties | VAUGHAN v. OATES. STANLEY N. VAUGHAN FUNERAL HOME, Inc., v. SAME. OATES v. STANLEY N. VAUGHAN FUNERAL HOME, Inc. et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. The fact that a vehicle may have a right of way over a public road or street, does not relieve the operator of such vehicle from the duty to operate the same with reasonable care.
2. The doctrine of the last clear chance can only be invoked where primary negligence on the part of the defendant is established, coupled with contributory negligence on the part of the plaintiff; and in a case where, in the trial thereof the defense of contributory negligence is denied the defendant, it is error to give an instruction on the theory of the last clear chance.
3. 'The doctrine of the last clear chance implies a sufficient interval of time for both appreciation of the dangerous situation and effective effort to relieve it.' Juergens v. Front, 111 W.Va. 670, 163 S.E 618.
Ambler, McCluer & Davis and Robert B McDougle, all of Parkersburg, for plaintiff in error.
John J. Yankiss and T. M. McIntire, both of Parkersburg, for defendant in error.
These action grew out of a collision between two motor vehicles, at the intersection of Juliana and Tenth Streets, in the City of Parkersburg, which occurred on the 1st day of August, 1942. One of the vehicles was an undertaker's ambulance, owned by Stanley N. Vaughan Funeral Home, Inc., which was driven by its employee, Stanley N. Vaughan, Jr. The other was an automobile owned and operated by Alice D. Oates. Stanley N. Vaughan, Jr., instituted his action against Alice D. Oates in the Circuit Court of Wood County, for alleged personal injuries growing out of such collision. Stanley N. Vaughan Funeral Home, Inc., instituted its action against Alice D. Oates, in said court, for damages to its ambulance. Alice D. Oates instituted, in the same court, her action against the Stanley N. Vaughan Funeral Home, Inc., and Stanley N. Vaughan, Jr., for damages to her automobile. These actions were consolidated in the circuit court, pursuant to the rule adopted by this Court on June 22, 1940, under the heading: 'Procedural Rule Respecting Cross-Actions In Tort', appearing in Volume 125 of our Reports. Being so consolidated and tried, there was a verdict in favor of Stanley N. Vaughan, Jr., against Alice D. Oates for the sum of five hundred dollars; and in favor of Stanley N. Vaughan Funeral Home, Inc., for thirty-five hundred dollars. There was no verdict on the claim of Alice D. Oates. Judgments were rendered by the Circuit Court on said verdicts in favor of the prevailing parties, and against said Alice D. Oates, and she prosecutes this writ of error.
The declarations in the two cases against Alice D. Oates contain the usual allegations of duty and the breach thereof, and, in addition thereto, are based upon the claim that the ambulance aforesaid, driven by Stanley N. Vaughan, Jr., had some character of privilege and priority at the intersection of the streets where the collision here involved occurred, over other vehicles, under an ordinance of the City of Parkersburg, Section 4(a) of which reads as follows: 'The officers and men of the Fire Department with their fire apparatus of all kinds, hospital ambulances, officers and men and vehicles of the Police Department, shall have the right of way on any street and through any procession, except over vehicles carrying the United States Mail, in responding to calls or orders in their several departments and when sounding the warning signals upon their respective vehicles.' The evidence in the case is to the effect that several years prior to the date of the accident there was an oral agreement between the undertakers in the City of Parkersburg and the city, by which it was agreed that undertakers owning ambulances were to answer emergency calls made by the police department, and that, at the time of the collision here involved, the ambulance of the funeral home was being operated by its employee while responding to a call of the police department to pick up a person injured in an accident in another part of the city. The declaration filed by Alice D. Oates is the usual declaration in negligence cases, and calls for no particular comment. Bills of particulars were called for by all the parties and furnished.
There was a plea of the general issue on the part of Alice D. Oates, and in each of the cases against her she filed two special pleas, in the second of which, in each case, she set up the ordinance of the city quoted above, and averred that the ambulance owned by the funeral home, and operated by its employee, did not come within the description of the vehicles which, by the city ordinance, were given the right of way mentioned therein. There was a plea of the general issue in the case in which Alice D. Oates was plaintiff, and the three actions were jointly tried on these declarations, the bills of particulars, and the pleas aforesaid.
Juliana Street in the City of Parkersburg runs approximately north and south; and Tenth Street east and west. Juliana is a through street, and, ordinarily, vehicles travelling thereon have the right of way. There is a stop sign located on Tenth Street, approximately eighteen feet west of its intersection with Juliana Street. The ambulance of the funeral home was travelling on Tenth Street in an easterly direction toward Juliana Street. It is admitted by plaintiffs, in the two actions against Alice D. Oates, that the driver of the ambulance did not stop when approaching Juliana Street; but it is claimed by him that at a point at or near the stop sign he looked down Juliana Street, along which he could see for a distance of one hundred fifty feet, and that he saw no vehicles approaching him from the south. He also looked north and observed none approaching from that direction. The person who was in the ambulance with the driver first saw the Oates automobile approaching on Juliana Street, when it was about eighty-two feet away. The driver of the ambulance proceeded partly across Juliana Street, and when he reached a point near the eastern curb of that street, the automobile driven by Alice D. Oates struck the rear right wheel of the ambulance, and, it is contended, struck it with such force that it raised the rear end of the ambulance, causing it to turn around, turn over, and finally come to rest on Tenth Street some ninety feet east of Juliana Street. The driver of the ambulance says he first saw the Oates automobile when it was some forty feet distant; and he also says that the ambulance was being driven at a reasonable rate of speed, probably not in excess of twenty-five miles an hour. Several witnesses, who saw the collision from residences and other points near the scene, substantially support the statements of the driver of the ambulance, as to his action and conduct and as to the speed of the ambulance. On the other hand Alice D. Oates testified that she was driving her Cadillac automobile up Juliana Street, having started from a garage on Seventh Street; that while driving up Juliana Street she slowed to permit a police car to pass her; that being acquainted with the Tenth Street intersection, and a turn in Juliana Street some eighty feet south of Tenth Street, she proceeded with her car under control, at a speed not exceeding twenty or twenty-five miles an hour; and that when she got within some forty feet of the intersection, she first observed the ambulance entering Juliana Street and applied her brakes and did what she could to prevent the collision. She says that the ambulance was travelling at a higher rate of speed than the automobile she was operating. Her mother, who was riding in the rear seat of the automobile, testified in substance, to the same state of facts.
While not assuming to pass upon the force and effect which should be given to the testimony in the cases, we think it clear that it raised several questions which properly should have been referred to the jury under proper instructions of the court; and, certainly, called for instructions which would have permitted the jury to find for either the plaintiffs in the Vaughan cases, or for Alice D. Oates in her case; or, on the theory of concurrent or contributory negligence, which proximately contributed to the injury or damage sustained in the collision, for neither.
It is not necessary further to comment on these facts, for three distinct errors call for reversal of the judgments, and the setting aside of the verdicts in these cases. These errors are: (1) Treating the ambulance as a police car with special rights over other vehicles operated by private owners under the above quoted ordinance of the City of Parkersburg; (2) denying to Alice D. Oates, in the trial of the cases, the right to present as a defense contributory or concurrent negligence of...
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