Weismantle v. Petros
| Decision Date | 24 March 1942 |
| Docket Number | 9255. |
| Citation | 19 S.E.2d 594,124 W.Va. 180 |
| Parties | WEISMANTLE v. PETROS et al. |
| Court | West Virginia Supreme Court |
Erskine, Palmer & Curl and H. Julian Ulrich, all of Wheeling, for plaintiffs in error.
Handlan Garden & Matthews, of Wheeling, for defendant in error.
This case is here upon writ of error to a judgment of the Circuit Court of Ohio County in favor of Marie Weismantle against Philip Petros and Moses Petros for $3,500, by way of damages for injuries claimed to have resulted from an automobile accident which occurred February 24, 1940.
The accident took place at the intersection of Richland Avenue and Fifth Street in the Warwood Section of the City of Wheeling. Richland Avenue is 22 feet wide and runs approximately north and south, parallel to the Ohio River while Fifth Street has a width of 20 feet and extends approximately east and west from the river to the foothills. The avenue is practically level; the street has a slight ascending grade to the eastward. Both streets are paved with concrete. An electric bulb lights the crossing.
On the evening of Saturday, February 24, 1940, the plaintiff and her husband were proceeding westward on Fifth Street in a Chevrolet coupe owned and driven by the husband. When the front of this car had reached the west edge of Richland Avenue it was struck by a Ford truck owned by the defendant Moses Petros, but being then driven by the defendant, Philip Petros, an infant, who defends this action by a guardian ad litem.
The plaintiff received certain bruises and suffered shock, for which the damages were claimed.
The dispute below and here arises principally, if not wholly, in law, and not as to facts. As these legal questions are basic they will be considered in detail.
The plaintiff relies upon an ordinance of the City of Wheeling, which reads as follows:
The plaintiff and her husband each testify that as they entered Richland Avenue they saw the Petros truck approaching from their right at a distance of from 150 feet to one block, and proceeded without further caution, relying on their "right--ofway" as against the truck. The defendants contend that this ordinance is invalid, as being in conflict with the general statute law of the State of West Virginia, found in Code, 17-8-10, as follows: "An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left on an intersecting highway, and shall give the right of way to an operator of a vehicle approaching from the right on an intersecting highway."
Philip Petros, the driver of the truck, states that as he approached Fifth Street, he saw the lights of a car coming from the east on that street, but proceeded without further precautions, believing he had the "right-of-way". Thus an issue of law was clearly drawn between the ordinance and the statute.
Regardless of what the law may have been
prior to the enactment of Chapter 40, Acts 1933, 1st Ex.Sess., section 32, article 8, of that act specifically authorizes the city to "regulate traffic at street intersections." This section, now Code, 17-8-32, reads thus:
It is admitted that neither Richland Avenue nor Fifth Street had ever been "designated by the state road commissioner as connecting parts of the primary road system." It cannot be disputed that the ordinance in question is a regulation of traffic at street intersections. It, therefore, must be applied to the present case in preference to the statutory rule. Much emphasis is placed by the defendants on the alleged impropriety of allowing every municipality to establish its own peculiar rules in this regard, and on this particular ordinance as encouraging a "race for the crossing." Admitting the force of these arguments, they cannot prevail with us. We find the law otherwise written by those who have the power to write it. And it was so written shortly after this Court had expressly held that the former statutes did not permit city ordinances to vary from the statutory state regulations of highways. State ex rel. Wells v. City of Charleston, 92 W.Va. 611, 115 S.E. 576.
The defendants, also, undertook to show by evidence that Richland Avenue is a "through" street, and Fifth Street a "stop" street. In this they wholly failed. An ordinance of the city designates as through streets "West Virginia State Route No. 2, U.S. Route 40, and any other street or highway as designated by the traffic commission of the city of Wheeling." But Richland Avenue is not a part of State Route No. 2, nor of U.S. Route 40, nor can any record be found, kept by the traffic commission or by any other official body or officer of the City of Wheeling, by which that avenue is designated as a "through street". It is shown, however, that streets in the city for many years had been frequently treated, at least temporarily, as "through streets" for a greater or shorter period of time, by the mere placing of stop signs against crossing traffic. While certain officers called as witnesses by the defendants at first hesitatingly stated that such signs had once, and for a time, been placed at some street crossings on Richland Avenue, none would say that any such sign had ever been set at Fifth Street, and all agree that no such sign had been there for some years before the time of this accident. Each of the defendants says that some years before the accident, there had been a stop sign on Fifth Street, but that there was no such sign present at the time of the accident. The defendants, therefore, have totally failed on this issue of fact.
The defendants denied that Philip was the agent or servant of Moses in the operation of the truck at the time of the accident. They are brothers. Their father and mother live at the corner of Richland Avenue and Fifth Street. The elder Petros operated a business of recapping automobile tires at 26th Street. Moses had worked with his father in this establishment, but for about one year before the 24th day of February had maintained his own business of like character in the City of Moundsville, about 12 miles from Wheeling. Philip is under age, and attends high school. He occasionally worked a few hours for both his father and brother Moses. The latter lived in a room over his father's shop. On the evening of the accident, the father was a patient in the Ohio Valley Hospital at Wheeling, where his wife was visiting him. According to the testimony of Philip, about 9 o'clock P M. a telephone call from his mother came to the father's place of business, where he and his brother were, asking him to bring the truck of Moses to the hospital and take her home. According to the defendants, Philip then asked Moses for the use of the truck, explaining the errand, and was given the keys and permission to take the machine. Philip then took his mother home, and drove thence to Sixth Street, at which point turned about and was returning to take the truck back to Moses at his father's place of business, when the accident occurred. Both defendants insist that the taking of their mother home was wholly Philip's enterprise. Moses, therefore, takes the position that the rebuttable presumption of the relation of principal and agent between him and Philip which arose from his ownership of the truck is conclusively overcome by this evidence, and that a directed verdict in his favor was imperative under the principle announced in Hollen v. Reynolds, W.Va., 15 S.E.2d 163; Lacewell v. Lampkin, W.Va., 13 S.E.2d 583; Jenkins v. Spitler, 120 W.Va. 514, 199 S.E. 368; Meyn v. Dulaney-Miller Auto Co., 118 W.Va. 545, 191 S.E. 558; Malcolm v. American Service Co., 118 W.Va. 637, 191 S.E. 527. The rule invoked, as recognized by this Court, is stated in the Jenkins [120 W.Va. 514, 199 S.E. 369] and Hollen cases in these words: ...
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