Weismantle v. Petros.

• Decision Date: 24 March 1942
• Docket Number: (No. 9255)
• Citation: 124 W.Va. 180
• Parties: Marie Weismantle v. Moses Petros et al.
• Court: West Virginia Supreme Court

124 W.Va. 180

Marie Weismantle

v.Moses Petros et al.

(No. 9255)

Supreme Court of Appeals of West Virginia.

Submitted February 10, 1942.

Decided March 24, 1942.

1. Automobiles

By virtue of Code, 17-8-32, which provides that "any incorporated city or town in this State shall have power * * * to regulate traffic at street intersections," a municipality may, by ordinance, establish regulations controlling operators of motor vehicles approaching intersections of streets "not designated by the state road commissioner as parts of the primary road system," differing from the general law relating to the rights of drivers of motor vehicles on intersecting highways, contained in Code, 17-8-10.

2. Automobiles

Where the defendant in an automobile accident case has introduced evidence for the purpose of rebutting the presumption that the driver of his car involved in the accident was acting as his agent at the time, the issue of fact thus raised must be submitted to the jury, if there is a reasonable question as to the credibility of the witnesses, or the evidence is inconclusive, or the surrounding circumstances tend to support the theory of the agency.

3. Evidence

An agreed statement of facts made on the trial of one case by an attorney for a party thereto, who was not present and did not know of such trial, and who did not authorize, approve, ratify, or know of such statement, cannot be used in evidence against such party as an admission against his interest on the trial of a subsequent and different action against him by another party.

Error to Circuit Court, Ohio County.

Personal injury action by Marie Weismantle against Moses Petros and another. To review an adverse judgment, defendants bring error.

Reversed; verdict set aside; new trial awarded.

Erskine, Palmer & Curl and H. Julian TJlrich, for plaintiffs in error.

Handlan, Garden & Matthews, for defendant in error. Rose, Judge:

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 $3500.00, 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 operator of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has first entered the intersection. When two vehicles enter an intersection at the same time the operator of the vehicle on the left shall yield the right-of-way to the vehicle on the right."

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-of-way" 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, 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:

"The provisions of this chapter shall apply in general throughout the State, and, except as provided in the two preceding sections of this article, no political subdivision thereof shall make or enforce any ordinance, order, rule or regulation imposing fines and penalties in conflict with those prescribed in this chapter or increasing or decreasing the speed, size and weight of vehicles as in this chapter defined. But any incorporated city or town in this State shall have power to enact and enforce ordinances and regulations limit- ing the speed, size and weight of vehicles on such streets, alleys and other public thoroughfares within its limits as are not designated by the state road commissioner as connecting parts of the primary road system, and to regulate or forbid the parking of vehicles upon any designated streets, alleys and other public thoroughfares within its limits, and to regulate traffic at street intersections and in congested districts."

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 twelve 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 nine 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 he 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...