Weaver v. Wheeling Traction Co.

• Decision Date: 26 September 1922
• Docket Number: No. 4482.,4482.
• Citation: 91 W.Va. 528
• Court: West Virginia Supreme Court
• Parties: Howard R. Weaver v. Wheeling Traction Co.

91 W.Va. 528

Howard R. Weaver

v.Wheeling Traction Co.

No. 4482.

Supreme Court of Appeals of West Virginia.

Submitted September 12, 1922.

Decided September 26, 1922.

1. Trial Rejection of Photographs to Show Condition of Street Two Years Before Photographs Taken Not Erroneous.

In an action for personal injuries caused by a defect in a street, on cross-examination of plaintiff's witness, defendant offered in evidence certain photographs taken two years after the injury, which were permitted to go to the jury to show the topography of the street at the point of the defect. Later, defendant, on the examination in chief of its witness, offered the photographs to show that the street at that point was in the same condition at the time of the injury as it was at the time the photographs were taken, which offer for that purpose was rejected, though it was shown by defendant that some changes had been made there since the.injury, and defendant's witnesses were freely examined as to the condition of the street as of the times of the injury and the taking of the photographs. The photographs were in for all practical purposes, and the action of the court was not error, (p. 532).

2. Same Evidence That Only Slight Changes Had Been Made in Street at Defect Point Since Personal Injury May Be Rebutted by Showing Changes.

In such an action, where defendant introduces evidence tending to show that no changes, or only slight changes, have been made in the street at the point of the alleged defect since the date of the injury, the plaintiff has the right to repel such evidence to show what changes have been made. (p. 532).

3. Railroads Company Bound to Repair Street Taken Over Under Road Law.

Where a street railway company under a franchise from a city is obliged to keep in repair that portion of the street occupied by its tracks, and afterward such, street is adopted by the county court of the county as part of a class "A" road, under the Good Roads Law of 1917, such action does not relieve the railway company of its duty under its franchise to keep its portion of the street in repair. (p. 538).

4. Appeal and Error Trial Allowing Plaintiff to Give Further Evidence After Defendant's Evidence Closed is Discretionary.

Generally, whether plaintiff shall be allowed to give furtherevidence after defendant's evidence is closed is within the discretion of the trial court, and its exercise will rarely be ground for reversal. (533.)

5. Damages Evidence Held 'Sufficient to Carry Question of Deceased's Earning Capacity by Personal Injuries to Jury.

Where, in an action for personal injuries to a boy eight years of age, the evidence shows that the left side of his skull was fractured between the frontal and parietal bones, requiring the removal of several pieces of bone as large as a man's thumb nail; that this wound can never be repaired; that it affected his ability to resist heat and cold; that he had some scalp wounds and wounds on his face, a cut extending through the eye-brow and upper eye-lid; that he is not as strong as he would have been had he not been injured, and the wounds were exhibited to the jury; there is sufficient evidence to go to the jury touching the question whether his earning power had been decreased by reason of the injury, (p. 533).

6. Same-$5,000 for Permanent Injuries to Head of Boy 8 Years Old Held Not Excessive.

Under such circumstances a verdict for $5,000 will not be set aside because excessive. (p. 533).

7. Municipal Corporations Defect in Street Held Proximate Cause of Injury in Runaway.

Where a gentle and reliable team hitched to a wagon, on a public street, takes sudden fright, and before its driver can make proper effort to regain control thereof, swiftly runs into a defect in the street about thirty feet away, an injury received thereby by a passenger in the wagon is) actionable and the defect in the street is the proximate cause of the injury. (p. 535).

Error to Circuit Court, Marshall County.

Action by Howard R. Weaver against the Wheeling Traction Company. From judgment for plaintiff, defendant brings error.

Affirmed.

Erskine, Palmer d; Curl, and James D. Parriott, for plain tiff in. error.

J. Howard Holt and Martin Brown, for defendant in error.

Meredith, Judge:

The defendant seeks to reverse a judgment for $5,000 rendered by the circuit court of Marshall County for personal injuries received by plaintiff, a boy about eight years of age.

The injury occurred near the intersection of Sixteenth and Marshall Streets in the City of Benwood. Marshall Street is but twenty feet wide. It extends north and south, and is intersected by Sixteenth Street running east and west. Defendant operates a street car line from the City of Wheeling, running through the cities of Beirwood and McMechen to Moundsville. This line is located on the west side of Marshall street as it runs through Benwood, and occupies approximately eight feet of the street, which was paved the entire width. On the day of the injury, the boy's father, Roscoe C. Weaver, a farmer, was operating-a market wagon. He drove his team south of Sixteenth street, stopped it on the east side of Marshall street headed south, got out and crossed the street to make a sale of strawberries, leaving his boy and the hoy's grandfather in charge of the team. He came back, took charge of the team, and turned his wagon to the right to go north. In doing so, on account of the narrow street, he was compelled to drive over on the part of the street between the rails of the defendant, One of the wheels on the left side of the wagon got on the west side of the east rail. There is some evidence that the bricks between the rails were loosely laid where he turned. After turning north, Mr. Weaver tried to turn his team further to the right, so as to get the wheel of the wagon on the east side of the east rail, but the wheel caught and slid along the rail, the grating noise or the whipping of the wagon tongue, oi-both, scaring his team, and it started to run away. It ran about ten yards, when the wagon ran into a hole in the street, upset, throwing the boy out and seriously injuring him; the father suffered a broken leg, though that injury is not involved in this action; the wagon tongue was broken, and the horses ran on for about one hundred yards, before stopping. The defendant had for some time been repairing the street where the wagon upset and northward therefrom, taking up the brick, removing the dirt between the ties, and putting in sound ties where the old ones had decayed. At the intersection of Marshall street with Sixteenth street there is a sewer crossing Marshall street, and over this sewer, as it crosses under the street car line, is a "grating" to let the surface water accumulating between the rails flow into the sewer. Just north of the grating the defendant had removed the brick between its rails for a space of ten or fifteen feet, taken out the dirt between the ties and replaced the ties that had decayed. It had not repaved this space, but it claims it had refilled the spaces between the ties with crushed stone or slag, and had filled over the ties almost level with the top of the flange street car rails. On the other hand, it is shown by plaintiff that the brick had been taken up, and the dirt removed from between the ties, leaving the ties exposed, and a hole some eight or nine inches deep, about the width of the track and ten or fifteen feet in length; that the top of the rails was about eight or nine inches above the top of the exposed ties, and between the ties were the unfilled spaces where the dirt had been removed. There is a direct conflict between plaintiff and defendant as to the condition of the street between the rails where the accident occurred, and from the evidence the jury was warranted in finding that the defendant had maintained a dangerous depression there, and for an unreasonable length of time, as this work had without doubt been going on for at least two weeks. The defendant practically admits the length of time it had been carrying on the work but claims it had been filling up this hole from time to time as needed; that it wanted the traffic passing over this space to pack down the crushed stone or slag before the brick pave ment was laid, but the evidence on behalf of plaintiff shows that traffic passed around this depression, one witness saying-that automobiles, to avoid it, used the sidewalk in front of his barber shop, which was near the depression. The record shows that it paved this space the day following the accident, showing that the depression there was unnecessary. We will take up the assignments of error in their order.

1. The defendant offered in evidence certain photographs taken some two years after the accident. These were offered on the cross-examination of the plaintiff's witness, Bower, and were let in at that stage to show the topography of the street, but...