Warth v. Jackson County Court

• Decision Date: 29 October 1912
• Parties: WARTH v. JACKSON COUNTY COURT.
• Court: West Virginia Supreme Court

76 S.E. 420

71 W.Va. 184

WARTH v. JACKSON COUNTY COURT.

Supreme Court of Appeals of West Virginia.

October 29, 1912

Submitted March 7, 1911.

Syllabus by the Court.

A married woman may sue alone, or make her husband coplaintiff in an action for damages for a personal injury.

In such action the wife cannot recover for loss of time and money expended in effecting her cure unless she avers and proves that she employed her time, or some material part of it, in her own separate earnings or business, and that she has paid the expenses of her cure out of her separate estate, or that she is personally liable therefor.

A married woman, having no separate business or estate employing her time wholly about her husband's household affairs, who sues for a personal injury, can recover damages only for physical pain, mental anguish, and impairment of her capacity to enjoy life.

In view of the statute (section 53, c. 43, Code 1906), proof of knowledge by the road overseer of a defect in the public highway for a sufficient time to enable him to make repairs is not essential to establish negligence for failure to keep the highway in repair.

Unless a defect in a public highway, known to the traveler, is so obviously dangerous that no person of ordinary prudence would assume the risk of attempting to drive over or by it, it is for the jury to determine whether or not he has been guilty of negligence in doing so.

One whose negligence has placed another in a perilous situation cannot escape liability for an injury resulting from his effort to escape from the danger, provided he used such prudence and judgment as an ordinarily prudent person would have used, in view of all the circumstances.

A traveler on the highway in a vehicle driven by another is not generally required to exercise the same degree of care as the driver to avoid accident; still, if he has equal knowledge of a defect in the highway and knows that the driver is about to drive by, or over it, and neither protests nor offers to get out of the vehicle, and is injured, the negligence of the driver, if any, is attributable to the traveler.

(Additional Suyllabus by Editorial Staff.)

A request to instruct that, if plaintiff was injured by attempting to jump from the buggy, she cannot recover unless a person acting with due care would have believed it necessary to so jump, and she used ordinary care in doing so should have been granted; the "ordinary care" referred to being such care as an ordinarily prudent person would exercise in view of the existing circumstances.

Error to Circuit Court, Jackson County.

Action by Cora Warth against the County Court of Jackson County. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

R. E. Hughes, of Ripley, and John M. Baker, of Spencer, for plaintiff in error.

Thomas Coleman, of Parkersburg (Oscar Parsons, now deceased, late of Ripley, on trial below), for defendant in error.

WILLIAMS J.

Mrs. Cora Warth recovered a judgment for $262.50 against the county court of Jackson county as damages for a personal injury resulting from being thrown from her buggy because of a defect in the public highway, and the county court obtained this writ of error.

Defendant pleaded the general issue, and also tendered a plea styled "plea in bar." The court rejected this plea, and that is assigned as error. The substance of the plea is that plaintiff is a married woman, and that she was living with her husband both at the time of, and since, the accident. But that fact does not bar her right, in view of the married woman's act, to sue, without uniting her husband, and recover for a personal injury. The common-law rule which required the husband to join the wife in an action for personal injury to her is abrogated by statute in this state. The husband is not now a necessary party to such suit; the wife may sue alone, or join her husband, at her election. Stevens v. Friedman, 58 W.Va. 78, 51 S.E. 132, Normile v. Wheeling Traction Co., 57 W.Va. 132, 49 S.E. 1030, 68 L.R.A. 901, and Gross v. Gross, 73 S.E. 961.

It is insisted, in brief of counsel for defendant, that the proof does not establish the fact that the road in question is a public highway. But, in addition to the testimony of witnesses proving the road had been worked for very many years by the road overseer for the precinct, which in our opinion is sufficient proof under the decisions in Sheff v. City of Huntington, 16 W.Va. 308 (syl. pt. 15), Campbell v. City of Elkins, 58 W.Va. 308, 52 S.E. 220, 2 L.R.A. (N. S.) 159, and Burke v. County Court, 73 S.E. 304, the record notes an agreement between opposing counsel, made at the trial, that it is a public road. No witness denies that the road is a public highway.

Section 53, c. 43, Code 1906, places an absolute liability on the county court to a person injured in person or property because of a defect in the public highway. Biggs v. Huntington, 32 W.Va. 55, 9 S.E. 51; Gibson v. Huntington, 38 W.Va. 177, 18 S.E. 447, 22 L.R.A. 561, 45 Am.St.Rep. 853. It is therefore not necessary, in order to establish negligence, to prove that the road overseer had previous notice of the defect and time to make repairs. Arthur v. Charleston, 51 W.Va. 132, 41 S.E. 171. But the liability imposed by the statute does not absolve the traveler from the duty to exercise reasonable care for his own safety in the use of the highway. He cannot recover if he recklessly subjects himself to obvious dangers. Phillips v. Ritchie, 31 W.Va. 477, 7 S.E. 427; Moore v. Huntington, 31 W.Va. 842, 8 S.E. 512. It is proven, and not denied, that the water had washed a ditch 15 to 18 inches deep and about 3 feet wide, near the middle of the road, for a distance of 20 feet or more; that there was barely room for a vehicle to pass along the road on only one side of this ditch; that the road had been in that condition for more than a week, and growing more dangerous with each recurrence of rainfall. The above facts are not denied, and they prove defendant's negligence.

The only defense is that plaintiff was guilty of contributory negligence and therefore cannot recover. Was she guilty? Plaintiff and her husband had driven over the road about three o'clock p. m. on the day of the accident to visit the husband's father about three miles distant; on returning the same afternoon, about the time it was beginning to get dark, but still light enough to see the ditch, plaintiff's husband attempted to drive by it, and the bank of the ditch gave way under the weight of the horse and precipitated him into the ditch. Plaintiff and her husband are the only eyewitnesses to the accident, and they both say that when the horse went down into the ditch the pole of the buggy was over his back, and that, in lunging to get out, the horse came up under the tongue and turned the buggy over against the bank; and that, as plaintiff was attempting to get out of the buggy, the horse again lunged, suddenly jerking the buggy and throwing plaintiff to the ground, breaking her arm.

The husband was driving the team; plaintiff exercised no control over it, but appears to have intrusted the driving wholly to her husband. Ordinarily a passenger riding in a vehicle driven by another is not held to the same degree of care to keep a lookout for dangerous places in the road that is required of the driver. But if the passenger knows of any existing or approaching danger, whether it be known or unknown to the driver, he is negligent if he fails to call the driver's attention to it, or tries, in some way, to avoid it. In this case it appears that plaintiff and her husband both knew of the ditch and both saw it at the time, but it does not appear that she offered to get out, or that she protested against his undertaking to drive by it. Hence it follows that, if it was negligence for the husband to assume the risk of driving by the ditch, his negligence is attributable to the wife; or, in other words, that she was guilty of contributory negligence. 1 Shear. & Red. on Neg. (5th Ed.) §§ 66a and 67; Elliott on Roads & Streets (2d Ed.) § 844; Hoag v. Railroad Co., 111 N.Y. 199, 18 N.E. 648; Dyer v. Railway Co., 71 N.Y. 228; Transfer Co. v. Kelly, 36 Ohio St. 86, 38 Am.Rep. 558; Miller v. Railway Co., 128 Ind. 97, 27 N.E. 339, 25 Am.St.Rep. 416; Borough of Carlisle v. Brisbane, 113 Pa. 544, 6 A. 372, 57 Am.Rep. 483; Nesbit v. Town of Garner, 75 Iowa 314, 39 N.W. 516, 1 L.R.A. 152, 9 Am.St.Rep. 486; Smith v. Railroad Co., 87 Me. 339, 32 A. 967; Howe v. Railroad Co., 62 Minn. 71, 64 N.W. 102, 30 L.R.A. 684, 54 Am.St.Rep. 616.

Plaintiff and her husband both say he was driving very carefully and was on the same side of the ditch that they had passed over only a few hours before; that it was not too dark to see the road and the ditch, and that he did see it and was very careful to avoid getting into it; that, notwithstanding the care he used, the bank of the ditch gave way under one of the horses; and that the solid roadbed on which he was driving was only about six feet wide. The road was in constant use other witnesses say they drove over it the same day and plaintiff and her husband had passed over it safely only a few hours before. Therefore we cannot say, as matter of law, that the risk was so obviously dangerous that a reasonably prudent person would not have assumed it, and that plaintiff displayed such reckless disregard for his safety, in attempting to drive by the ditch, as amounts to negligence per se. It was for the jury to say whether or not plaintiff exercised such reasonably sound judgment as an ordinarily prudent person would have exercised in the premises. If she did, she was not negligent. Elliott on Roads and Streets (2d Ed.) § 636; Hoag v. Railroad Co., 111 N.Y. 199, 18 N.E....