75 W. Va. 389 | W. Va. | 1914
While walking in a street of a new addition to the city of Fairmont, plaintiff was struck by an automobile belonging to the defendant company, operated by a chauffeur in the ordinary line of defendant’s business. She was severely but not permanently injured. In this action against the garage company, upon a declaration stating a good cause of action, she has been awarded damages for the injury. From the judgment defendant brings error.
The street where plaintiff was walking when injured was paved only in the middle of the roadway. On side of the paved portion was occupied by a street car track. There were no sidewalks. Plaintiff, in going from her home to the house of a relative, was pursuing her way along this street, walking-on the car track. Upon the approach of a street car, she started to cross to the opposite side of the street and was struck by the automobile.
Plaintiff says the driver of the automobile was negligent. Defendant says plaintiff herself was negligent. Under the evidence in the case, which it will serve no good purpose to detail, the question' whether there was negligence warranting recovery or contributory negligence barring recovery was for the jury to settle, in the light of proper instructions.
Witnesses were asked to give their opinions whether the speed of the automobile was unreasonable. Their opinions that it was, were admitted in evidence over the objection of defendant. A bill of exceptions saves the point. Clearly it was error to admit such testimony. The witnesses might as well have been permitted to give their opinion as to whether defendant was negligent. Whether the rate of speed was reasonable or unreasonable was .for the jury to say upon proof of facts and circumstances in that relation — not for
Plaintiff is a married woman. That fact appeared on the trial, but without more as to her marital situation. She testified as to expenditures for her restoration and cure, as to the loss of her clothes, and as to loss of time. It is submitted that this testimony is inadmissible under Warth v. County Court, 71 W. Va. 184, wherein we decided that a married woman, not engaged in separate business for herself, employing her time wholly about her marital household affairs, can not recover for a personal injury any damages other than for physicial pain, mental anguish, and impairment of her capacity to enjoy life. Plaintiff testified that she herself paid out the sums that were expended to effect her restoration and cure. That is evidence of the expenditure of separate estate, for which she is entitled to recover. The evidence as to the value of her clothes torn and lost to her,
It was not improper to ask the chauffeur and another witness on cross-examination whether the chauffeur was licensed. Defendant sought to show the qualifications and experience of its employee, the chauffeur, and the fact that he was not licensed was pertinent thereto.
No novel propositions calling for discussion are raised by the giving and refusing of instructions.
The error noted is prejudicial. We must therefore reverse the judgment, set aside the verdict and award a new trial.
Reversed and Remanded.