91 W. Va. 641 | W. Va. | 1922
The judgment for $741.67, brought up for review, by this writ of error, was recovered in an action for personal injuries sustained in a collision between two automobiles on a public highway, in a period of dense fog, alleged to have been occasioned by the negligence of the defendant who, at the time, was driving his own car, while the plaintiff was riding in a Ford car owned and driven by a neighbor and friend who is alleged to have been a competent driver and to have been exercising due care and prudence, at the time of the collision and injury.
As the declaration fully sets forth the situation and relation of the parties, the time, place, manner, character and extent of the collision and injury and charges that they were occasioned by the negligent, careless and reckless driving of the defendant, it sufficiently states a cause of action; wherefore the demurrer to it was properly overruled. It describes the road at the place of the collision, shows it to have been twenty feet wide at that point, places the car in which the plaintiff was, on the right side thereof, avers ample room for
It is insisted, in view of the peculiar facts disclosed, that plaintiff’s instruction No. 1 was erroneously given and that the verdict should have been set aside, as being contrary to the law and the evidence, as well as for erroneous rulings. All of the witnesses agree that the collision occurred in a fog so dense as almost to preclude vision. The three men in the car in which the plaintiff was riding say they did not see the defendant’s car until they collided with it, and that earlier view thereof was prevented by the density of the fog. The defendant and two of his three companions in the other car, a Cole 8, agree that the fog was thick and greatly obstructed the view; but they say they saw the Ford car at distances varying from a car length to forty feet, before the collision occurred. All agree that there was not sufficient time for any material change in the positions or directions of the cars, after they came into view. The Ford car displayed no lights, carried no speedometer and its horn was not working efficiently. There is no proof that the other car displayed any lights or sounded its horn. According to the .testimony of its occupants, the Ford car was running at the rate of five to seven miles per hour. The occupants of the other car placed its speed at three miles per hour. From the results of the collision, it might be inferred that one or both of the cars were running faster than the witnesses say they were running. The driver of the Ford car was thrown over the wheel and injured. His companion in the front seat, the
We are of the opinion that plaintiff’s instruction No. 1, read in the light of the evidence, was too narrow in its terms. It directed and required the jury to find for the plaintiff, if they believed the defendant was driving on the left side of .the road, at the time of the collision, and failed to turn his car to the right side thereof, on meeting the car in which the plaintiff was, so as to pass it without interference, and, in consequence of such failure, struck it and thereby caused the injury; unless they should further find that the driver of the car in which the plaintiff was, failed to turn it to the right of the center of the road. There were many other facts the jury should have taken into consideration. On account of the fog, it may have been difficult for either party to know or maintain his proper position on the road. Each may have been guilty of negligence in using the road under the prevailing conditions, without further precautions than those adopted. The admitted rate of speed of the car in which the plaintiff was may have been too great under the circumstances. The jury might have been able to infer from the force of the collision, evidenced by its results, that the car was maintaining a much higher rate of speed than that admitted. A lower rate of speed might have enabled the driver to see the other ear in time to stop, as the defendant says he did. Right of recovery does not necessarily arise out of the negligence of,the defendant. Contributory negligence on the part of the plaintiff, or such negligence legally imputable to.him, bars recovery, notwithstanding negligence
Instruction No. 1 asked for by the defendant was properly refused, because, if given, it might have misled the jury. If he was out of place on the road, his careful and cautious driving there would not have saved him from liability. Instruction No. 4 requested by him was also properly refused. It may not be negligence to drive on the left side of a straight road, but the statute positively requires a driver to keep as far to the right as possible in rounding a curve. Sec. 96r ch. 112, Acts 1921. Though the road may have been straight at the point of contact, the defendant had just passed around a curve, and, if he had complied with the legal rule, likely he would have been on the right side of the road. Instructions Nos. 10 and 11 requested by him, which would have submitted the theory of contributory negligence on the part of the plaintiff, based upon his remaining in the car, without protest, in view of alleged obvious danger, were properly refused, because their subject matter was sufficiently covered by others given.
Sufficiency of the evidence to sustain the verdict was challenged by a request for a peremptory instruction to find for the defendant, which the court refused to give. This ruling necessitates inquiry as to its sufficiency. Plaintiff’s assumption of right on his part to proceed along the right hand side of the road, ■ in a fog so thick that he could not see through it, or so dense that he could not see for any distance in advance, while maintaining the moderate rate of
Reversed and remanded.