Yoder v. Charleston Transit Co., (No. 8529)
| Decision Date | 15 June 1937 |
| Docket Number | (No. 8529) |
| Citation | 119 W.Va. 61 |
| Court | West Virginia Supreme Court |
| Parties | Ida Yoder v. Charleston Transit Company |
Negligence
Where a pedestrian, prosecuting an action for damages for injuries received from being struck by a vehicle as she was attempting to cross a street, testified that just before starting across the street, she looked in both directions and saw no vehicle approaching, that her view was unobstructed for a distance of two hundred feet, and that when she had taken about four steps from the curb, a large passenger bus bore down on her and in her effort to escape being struck by the bus she ran into the path of an automobile traveling in the same direction with the bus, she was guilty of negligence as a matter of law: having looked, she is charged with having seen that which was in plain view.
Error to Circuit Court, Kanawha County.
Action by Ida Yoder against the Charleston Transit Company. To review a judgment for plaintiff, defendant brings error.
Reversed and remanded.
Kenna, President, dissenting.
R. E. O'Connor and J. Howard Hundley, for plaintiff in error.
Lilly & Lilly, for defendant in error.
The Charleston Transit Company prosecutes this writ of error to a judgment of the Circuit Court of Kanawha County denying a writ of error to a judgment entered in the Common Pleas Court of that county September 5, 1936, against it and in favor of Ida Yoder in the sum of $5,000.00. The judgment was rendered in an action of trespass on the case which grew out of the plaintiff's having been struck by an automobile driven by one C. L. Wells at about eleven-thirty on the night of December 4, 1935, in Virginia Street at Quarrier Walk about midway of the fifteen-hundred block in the City of Charleston.
The assignments of error turn upon four major propositions: (1) That no vehicle owned and operated by the defendant has been in any manner by the testimony connected with the plaintiff's injury; (2) that the testimony shows that the plaintiff's own negligence was the proximate cause of her injury; (3) that in any event, the trial court erred in not setting aside the verdict and granting the defendant a new trial upon its showing of after-discovered evidence; and (4) that it was error to refuse defendant's instructions seven and thirteen.
The plaintiff and C. L. Wells, whose automobile admittedly struck plaintiff inflicting her injuries, were the only persons present at the scene of the accident who testified.
The plaintiff's testimony, in addition to a full description of her injuries with which we are not here concerned because there is no assignment of error based on the amount of the verdict, was to the effect that on the evening in question she had been visiting a friend in West Charleston, and, leaving at about fifteen minutes till eleven o'clock, boarded a West Charleston street car to return to the home of her employers, Mr. and Mrs. A. A. Lilly, in Virginia Street, just opposite the scene of the accident. In Capitol Street, she transferred to an Outer Loop car at about eleven-fifteen; this car is routed north on Capitol Street to Washington, east on Washington Street to Duffy Street, south on Duffy Street to Virginia Street and west on Virginia Street, passing the plaintiff's destination which was the stop at Quarrier Walk about midway the fifteen-hundred block, to Capitol Street again. The plaintiff did not know the time of her arrival at the Quarrier Walk stop, but estimated that it was about eleven-thirty.
She testified that she alighted from the street car at the front and on the right side and walked to the north curb, which was the opposite side of the street from the Lilly home. There she paused. Her testimony is confusing at this point, she having stated at one time that she waited five minutes and at another time that she waited five seconds. She then walked west approximately ten steps (or ten feet as she stated at another point in her testimony) and, after having looked both ways and at a time when the street car which had proceeded on its course was about two hundred feet west of her, she started across the street. She further testified that at the time she looked, there were no vehicles approaching her from either east or west, and that there were no automobiles parked on either side of the street in the immediate vicinity; that when she had gotten into the street and was within about four feet of the north rail of the car track which extends along the middle of the street, a large, bulky vehicle running with dimmed lights loomed up and was within a very few feet of her when she first saw it; that it was running at a very fast rate of speed; that in order to escape being run down, she attempted to dodge from in front of the approaching vehicle and as she did so, she was struck by a vehicle proceeding in the same direction but to the south of the one that first bore down on her; that she knew nothing after the impact until she came to consciousness in the Wells car, and was taken by Wells to the Mountain State Hospital.
The testimony of C. L. Wells was to the effect that after having conducted a prayer service at his church in Morris Street, he went with two friends to their homes in West Charleston, after which he drove up Virginia Street, stopping at the Studebaker garage to inquire about having his car serviced. At Ruffner Avenue, which is the first street intersection west of the point where the plaintiff was struck, Wells slowed down and for the first time noticed a bus which stopped at Ruffner Avenue for the purpose either of taking on or letting off a passenger. He proceeded up Virginia Street with the bus behind him. Two or three hundred feet west of the point of the accident, a street car going west met Wells' automobile and immediately thereafter, the bus which had been behind him pulled out to the left and started around him. Wells states he was running at the rate of between twenty-five and thirty miles an hour. At about the time the bus had gone possibly two-thirds of the way past him the plaintiff "just flashed up" out of the bus lights and before him. He immediately applied his brakes but could not stop in time to avoid striking the plaintiff with serious impact. He placed the plaintiff in his automobile and took her at once to the Mountain State Hospital were she remained for a little over four weeks, most of the time in a very serious condition. After taking the plaintiff to the hospital, Wells went to police headquarters where he reported the accident and where he talked with R. G. Lilly. He and Lilly then went to the scene of the accident and inspected two skid marks which presumably evidenced the effort of Wells to stop his automobile.
Of the witnesses for the defendant there were the two drivers of buses which covered the route past the scene of the accident the night in question. Both these men testified that they knew nothing of any occurrences such as those referred to in the plaintiff's testimony having taken place that night. It appears from their examination that they were accustomed to driving their route at the rate of twenty to thirty miles an hour. The plaintiff had introduced an ordinance of the City of Charleston restricting the speed in the area of the accident to twenty-five miles an hour.
The defendant also showed by the desk sergeant to whom Wells reported the accident at police headquarters that Wells had signed the report prepared by the sergeant in which the presence of a bus at the place of the accident was not mentioned and the accident was described by the statement that, "car traveling east on Virginia Street struck the above named lady (plaintiff) who was crossing street." Wells had stated on cross-examination that he had told the desk sergeant exactly how the accident had happened, the same as he had described it from the witness stand.
The defendant also introduced its claim agent who testified that early on the morning immediately after the accident, he called at the home of Wells and was there told by him "all that happened was that woman stepped out from behind a street car so close in front of me I couldn't prevent hitting her." Wells denies such statement.
Under the first assignment of error, the initial question to be discussed is the assertion of the defendant that the record contains no proof that a bus owned and operated by it was present at the scene of the accident. The plaintiff did not describe the vehicle that first bore down on her as one of the defendant's buses. She referred to it as a large bulk which "had those lights up like a bus". In his examination in chief, Wells was asked if he had seen a bus owned and operated by the Charleston Transit Company. This question, of course, was leading, and objectionable also on the ground that it asked the witness for a conclusion. Nevertheless, it was not objected to and the witness replied in the affirmative. He stated that he had first seen the bus at Ruffner Avenue where it stopped and where he passed it. His testimony carries the bus to the scene of the accident and shows it to have been the same that went around his car just below the place where the impact occurred and traveling at the rate of forty-five to fifty miles an hour. On his re-cross examination, Wells stated that the bus was "kind of a dark yellow". He further stated in response to an unobjected-to leading question that it was the same color that "they" were using now. The testimony of the defendant showed it did not operate any yellow buses, and that, according to the regular schedules of the company, none of its buses would have passed the place of the accident, if on time and not ahead of time, at thirty-two minutes past eleven, which was approximately the time of the ac- cident. Of course, the testimony of the two bus drivers to the effect that no incident like that here involved had occurred on their route that evening, tended strongly to contradict the...
To continue reading
Request your trial