Wilkins v. Schwartz
| Citation | 132 S.E. 887 |
| Decision Date | 06 April 1926 |
| Docket Number | (No. 5567.) |
| Court | Supreme Court of West Virginia |
| Parties | WILKINS. v. SCHWARTZ. |
(Syllabus by the Court.)
Error to Circuit Court, Mingo County.
Trespass on the case by Magdalene Wilkins, an infant, suing by her next friend, Helen Wilkins, against J. H. Schwartz, for personal injuries. Judgment for the plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and a new trial awarded.
William B. Hogg, of Williamson, for plaintiff in error.
Lafe B. Chafin, of Williamson, for defendant in error.
LITZ, P. The plaintiff, Magdalene Wilkins, an infant, suing by her next friend, Helen Wilkins, in trespass on the case, recovered a verdict and judgment against the defendant, J. H. Schwartz, in the amount of $1,500, for personal injury sustained by her while riding in his automobile, to which judgment he prosecutes error.
The accident occurred in the town of Williamson August 20, 1924. Magdalene Wilkins, a child of about 8 years of age, visited the defendant's home in the city on that morning. She states that soon after arriving the defendant requested her to accompany his chauffeur, Clyde Litteral, in the automobile to a certain section of the city for the purpose of pointing out to the driver the home of Frank Schwartz. While driving in an easterly direction on East Fourth avenue, at a speed of from 10 to 20 miles per hour, Litteral saw an automobile operated by Dave Lloyd approaching from the east 25 or 30 miles an hour. In front of Litteral, on the right, a truck was parked, and immediately ahead another truck was slowing down to stop along the right curb. On the opposite side of the street was parked a third truck. As the space between the trucks on either side was apparently insufficient for two cars to pass each other, the defendant's chauffeur drove to the left beyond the truck on that side of the street, to avoid a collision with Lloyd's car, and by so doing ran into an electric light pole near the curb, causing the plaintiff to be thrown against the wind shield of the car and sustain serious cuts about the face and head.
The refusal of the court to postpone the trial on account of the absence of a witness for the defendant, who had been summoned and was in attendance at the beginning of the trial, and the improper cross-examination of the defendant as a witness in his own behalf, constitute the grounds of error chiefly relied on for reversal.
The chauffeur, Clyde Litteral, who had been summoned as a witness on behalf of the defendant, was in the courtroom at the beginning of the trial. At the close of plaintiff's evidence it was discovered that he had disappeared, whereupon the court instructed the sheriff to bring him into court, and the defendant to proceed with his evidence, with leave to introduce said witness as soon as he was returned into court. After the defendant had completed his case, with the exception of the testimony of said witness, the sheriff announced that the witness could not be found; thereupon the defendant moved the court to postpone or pass the further trial of the case until such time as the witness could be found and returned into court. The motion was overruled. It seems that all of the evidence was taken in a few hours, and that there was no duty on the part of defendant, under the...
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