Webb v. Harrison

• Decision Date: 17 October 1944
• Docket Number: (No. 9589)
• Citation: 127 W.Va. 124
• Court: West Virginia Supreme Court
• Parties: Thelma E. Webb, Admx. v. Dennis A. Harrison

127 W.Va. 124

Thelma E. Webb, Admx.

v.Dennis A. Harrison

(No. 9589)

Supreme Court of Appeals of West Virginia.

Submitted September 20, 1944.

Decided October 17, 1944.

1. Evidence-

Negligence of the driver of a motor vehicle by which a pedestrian has been fatally injured may be proved by testimony as to circumstances from which such negligence may be reasonably inferred.

2. Evidence-

Ordinarily the question as to whether a prima facie case made by a plaintiff' by circumstantial evidence has been overcome by direct testimony of the defendant in conflict therewith is for the jury.

3. Automobiles-

Where a pedestrian has been fatally injured by the alleged negligence of the driver of a motor vehicle, the latter cannot exonerate himself from blame by denying that he saw or otherwise knew that which, by the exercise of proper care, he could have seen or known.

Error to Circuit Court, Kanawha County Action by Thelma E. Webb, administratrix of Roscoe S. Webb, deceased, against Dennis A. Harrison to recover for the death of deceased resulting from injuries sustained when struck by defendant's automobile. A judgment for defendant was entered on a directed verdict, and plaintiff brings error.

Reversed; verdict set aside; new trial awarded.

William F. Blue, Blue, Dayton & Campbell, and Fred O. Blue, for plaintiff in error.

B. J. Pettigrew and Rummel, Blagg & Stone, for defendant in error.

Rose, President:

On the trial of an action in the Circuit Court of Kanawha County, in which Thelma E. Webb, as Administratrix of her husband, Roscoe S. Webb, was plaintiff, and Dennis A. Harrison was defendant, based on the alleged wrongful death of the deceased, resulting from his having been struck by an automobile driven by the defendant, at the close of the plaintiff's evidence the court overruled a motion by the defendant for the direction of a verdict in his favor, but sustained a like motion at the completion of defendant's evidence and entered judgment accordingly.

The accident occurred on or near the northern edge of the paved portion of a public highway known as United States Route No. 60, between, the towns of South Charleston and St. Albans, in Kanawha County, at about nine o'clock p. m. on May 1, 1943, at the point of the entrance onto the paved portion of said highway of a private driveway extending to and along the side of deceased's residence. The road, at this point, was straight and level for several hundred feet in either direction. It was paved with concrete for a width of twenty-two feet. A hedge in front of deceased's lot was twenty-five feet from the northern edge of the pavement. The deceased had gone to a store west of his home to purchase a sack of feed. During his absence a guest arrived and parked his car in the driveway. The deceased returned riding on the right side in the seat of the truck by which the feed was being delivered. This truck was driven into the driveway and stopped, whereupon the deceased alighted on the right, or east, side of the truck. The driver testified that he asked the deceased, immediately after his alighting, whether the truck was clear of the road, and that, on receiving a negative reply, he drove the truck forward until its front bumper touched the rear bumper of the guest's car, and then set his brakes and stopped his engine. Immediately thereafter he heard the rattling of the chains by which the tail gate of the truck was held up, followed by a "racket" or "blundering", upon which he hastened to the rear of the truck and found the deceased lying ten or twelve feet west of the driveway, with his head on the pavement and his body extending outward on the berm. The defendant, after having stopped his car off the road at a point about fifty feet west of the point of the accident, immediately returned to assist in giving aid to the injured man, as did another driver who was passing eastward at the moment of the accident. The deceased was cared for in his home until an ambulance took him to a hospital in South Charleston, where he died at seven o'clock the next morning.

The surgeon at the hospital testified in part, speaking of the deceased, as follows:

"He had massive lacerations to the scalp in the mid parietal occipital region extending from the frontal to the occipital bone, from here back to here (indicating on head).

* * * a fractured skull in the mid vault, which means up here on the top of the head, a fractured skull. He had lacerations over the right eye and left side of his head; he had abrasions and contusions and lacerations over the body. He had a massive laceration over the gluteal region on the right side, which means along here (indicating). He had fractured ribs on the left chest, severe abdominal pain and he had brush burns through the skin in some places on the right side of his face, and he died of embolism. * * * in fact there were very few parts of his body that were not involved in some way. He was terribly contused and lacerated, and he had brush burns and then of course he had this massave fracture of the skull. He had his ribs and everything on the left side fractured, crushed."

The bed of the truck body was forty-eight inches from the ground. A slat from the rear of the framework of the truck above this body was found broken off. The guest whose car was parked in the driveway testified that its rear extended outside the hedge approximately three feet by actual measurement. The plaintiff also estimated the truck to extend three feet beyond this hedge. The truck itself was fifteen feet, four and one-fourth inches in length from the front bumper to its extreme rear. The tail gate was seventeen and one-half inches in height. Mathematically, these distances would place the rear edge of the tail gate, when lowered to a horizontal position, five feet, two and one-fourth inches from the edge of the pavement. The passing motorist who stopped estimated the distance of the rear of the truck from the pavement to be five or six feet. The owner of the parked car, shortly after the accident, stated to an investigator that the rear of the truck was two feet or more from the pavement; but he explained as a witness, that later, he made actual measurements and determined the distance to be four or five feet. The truck driver stated the distance to be "a good two feet if not more".

The defendant testified that he was twenty-seven years of age and an employee of a chemical concern near Charleston; that he had not slept since going to work at midnight immediately preceding; that his shift ended at seven o'clock on the morning of the accident, after which he worked about his home until about six o'clock p. m., when he went to South Charleston, from which place he was returning when the accident occurred; that his headlights were burning and stronger than ordinary headlights; that he was driving on the right or north side of the pavement at about twenty-five or thirty miles per hour; that his car did not leave the pavement until after the accident; that the rear of the truck was about two to two and one-half feet from the edge of the hard surface; that he saw the truck while about three hundred feet distant and swerved his car inward from the edge of the pavement to a line about two and one-half feet inside the north edge of the pavement as he approached the truck; that he saw nobody about the truck and knew nothing of the deceased's presence until he heard the blow against his car; that he did not know how the deceased reached his car; that a bit of cloth was found in a break in the right front fender of his car, which was afterwards identified as part of the deceased's trousers; that...