131 S.E. 558 | W. Va. | 1926
This is an action for the alleged wrongful and negligent killing by the defendant of plaintiff's wife, by running over her with his automobile while she was walking on or over *716 the railway track of the Monongahela West Penn Public Service Company paralleling the public street or road known as the Fairmont and Weston Turnpike, south of the city limits of the City of Fairmont, in Marion County.
On a plea of not guilty the jury returned a verdict for plaintiff for $3,500.00, on which the court pronounced the judgment complained of on the present writ of error.
The only errors assigned in the petition for the writ, or in the briefs of defendant's counsel are: (1) the refusal of the trial court, on defendant's motion, to exclude plaintiff's evidence and direct a verdict for the defendant; (2) the denial of defendant's motion to enter judgment in his favor notwithstanding the verdict; (3) for other errors apparent on the face of the record.
In argument and in their brief, however, counsel for defendant urge that the trial court erred in denying his motion to strike out plaintiff's declaration as amounting only to a stray paper, and in fact no pleading on which judgment can be properly founded. Two criticisms of the pleading are interposed; one that it does not bear the title of Circuit Court of Marion County; the other that it is signed by "Neely Lively, p. q."
The caption of the declaration is: "State of West Virginia, County of Marion." Although all forms of declarations do show in what court the action is brought, we have found nothing in our statute requiring it. The summons must show in what court the defendant is required to answer the suit or action. If the declaration is filed in that court, it would seem to be a matter of form merely for the pleading also to state the court in which it is actually filed. Our statute, section 9, chapter 125 of the Code, says: "No action shall abate for want of form, where the declaration sets forth sufficient matters of substance for the court to proceed upon the merits of the case." And in Indiana, where it would seem the statute requires the declaration to state the court in which it is filed, it is regarded as mere matter of form, and the want of it not fatal, nor reach by demurrer. Smith v. Flack,
Respecting the manner and form of signing the pleading, there seems to be no merit in the point of error. The forms given in the form books all admit of signatures of counsel with the suffix "p. q." The defendant's own petition is signed "Shaw
Shaw", the firm name; but it is replied that the name of the defendant is first signed by Shaw Shaw, the firm name — a distinction without a difference, we think. It is conceded that if the individual names of the partners were signed to the pleadings, it would be good, but that there is no warrant for signing the firm name, as firms are not as such licensed to practice law in the courts — a proposition supported by no citation of authority, doubtless because none could be found. There is authority for the counter proposition, that attorneys may sign in their firm names. 31 Cyc. 526; Zimmerman v. Wead,
Plaintiff's case, by pleading and proof, is predicated on the theory that defendant, at and just before the time of the injury, was operating his car over the public road at a dangerous rate of speed; and (2) failed to have it under his control in time to avoid hitting and killing the deceased. Defendant's motion to exclude plaintiff's evidence before verdict, and the court's denial of his motion to direct a verdict in his favor non obstante veredicto, are both based on his claim that the evidence failed to sustain his theory of negligence, but supported his theory of an unavoidable accident, and an insufficient declaration to sustain plaintiff's theory or right of recovery.
The only evidence relied on by plaintiff was the oral testimony of defendant himself and of Silverman, who was a passenger with him at the time of the injury, and the physical facts attending the injury and death of Mrs. Fleming. Defendant and Silverman were the only witnesses to the tragedy. The facts are few; and practically the only conflict in the evidence is the slight discrepancy between the two witnesses *718 as to the rate of speed of defendant's car immediately before it ran upon and injured the decedent. On the inquest of the coroner, both witnesses substantially agreed that the car was traveling at a speed of from fifteen to twenty miles per hour. Silverman said it was from fifteen to eighteen. Defendant on the trial said it was from eighteen to twenty. On the trial and after he had been taken to the place of the accident by plaintiff and his attorney and had done some experimenting in driving his car over the same section of road where the accident occurred, and had conferred with them, Silverman came to the conclusion, and swore that he estimated the speed of the car to have been about twenty-five miles per hour. But he says he did not watch the speedometer, and couldn't say exactly. Manifestly the effort of plaintiff and his counsel was to establish by the testimony of Silverman and the physical facts attending the accident, that the rate was over twenty and as much as twenty-five miles per hour, this for the purpose of proving an unlawful rate of speed prescribed by the statute and laws of the road. Whether, if the rate was over twenty miles the speed was unlawful, depends upon the question whether the section of the road where the accident occurred was an open country highway or a suburban street. The defendant contends for the former; the plaintiff for the latter. The maximum rate of speed for cars like defendant's, prescribed by section 95 of chapter 43 of the Code, as amended by Acts 1923, is for open country roads thirty-five miles per hour, suburban streets twenty-five miles per hour, and on urban or city streets fifteen miles per hour. The statute, section 75, chapter 43 of the Code, defines these classes of streets and roads; and an open country highway is thereby defined: "A highway, or portion thereof, greater than one-fourth of a mile in length, along either side of which the buildings average more than three hundred feet apart." A suburban road is defined as not less than one-fourth of a mile in length, on either side of which buildings average less than three hundred feet apart, but more then fifty feet. It is conceded that the road in question was not an urban street as defined by the statute; and from the evidence on the subject, including that of S. B. Miller, engineer, *719 called by plaintiff, we conclude that the road both ways from the place of the accident for the requisite distance, brought it within the definition of an open country road as defined by the statute, and that if the defendant was not traveling to exceed thirty-five miles per hour he was within the law as far as his speed was limited by statute; and if it be true, as he swears, that he was not traveling to exceed twenty miles per hour, he was not exceeding the speed limit even if the road was a suburban street. So that negligence, if any, rendering him liable in this action can not be supported by proof of the speed of his car.
But was defendant otherwise negligent in the operation of his car, so as to render him liable for the death of Mrs. Fleming? The place of the accident was on said public road, about 75 to 80 feet south of "Kennedy Stop" on the line of the Monongahela West Penn Public Service Company's electric railway, paralleling said road. The road on each side of this stop was practically straight for quite a distance, and down grade for most of the way to the city limits of the City of Fairmont. The time of the accident was March 25th, at about 7:45 P. M. It was dark and raining; and travelers in automobiles, including defendant were running with lighted lamps. Defendant with Silverman as a passenger was driving a Dodge coupe. He lived at Monongah, another station on the electric line, and was superintendent of the public schools in that town. The road was paved with brick, and was fourteen feet wide, with a twelve inch curb on each side of the pavement, making with the curb a total width of sixteen feet; but the uncontradicted evidence is that the curb, built of poor material, had crumbled down to the depth of two to two and a half inches and added little to the width of the road. Between the road and the ends of the crossties of the railroad there was an unpaved space of ballast, and the ballast, such as it was, in this space and between the ends of the crossties and up to the steel rail next to the road, was of cinders; and the entire width from the curb to the steel rail was from 32 to 34 inches, practically the diameter of the tires on defendant's car; and the ballast did not in all places come to the top of the crossties; but generally the cinders were flush *720 with the ends of the ties, and conformed to the top of the curb. The steel rail was 4 1/2 inches deep above the ties. According to one witness, S. B. Miller, a civil engineer, who took some measurements, the top of the steel rail at the point of the accident was seven or eight inches above the brick pavement. This witness says, however, that where the cinder ballast was, as in some places, flush with the top of the ties, the wheels of the car in going upon the railway track would have nothing to impede them except the steel rail 4 1/2 inches above the ties. Told in the language of defendant, and corroborated by Silverman, the accident happened in this way: "We were driving down the road during the night. It had been raining for some time. It was dark, and as I rounded the top of Peacock Hill an automobile came towards us with bright lights on. I dimmed my lights, hoping he would dim his. He failed to dim, so I turned my bright lights on before he passed me. As we rounded the bend, we saw another car coming towards us at a very high rate of speed and with very bright lights. I told Morris when we passed the other car, since he failed to dim, I was not going to dim any more. I did not dim my lights. He was coming up almost in the middle of the road, and I had to keep getting off farther and farther in order to let him by. Just as his headlights, the headlights of his car got alongside of me, it took the glare of his lights out of my eyes, and right at that time the figure of a woman loomed up right in front of my right wheel. I pulled the wheel to the left to hit the other car and avoid hitting her. I hit her. Did my best to stop the car. As soon as I got stopped — as soon as I could stop the car, we went back to pick up Mrs. Fleming." As proof of being crowded off the road in the manner stated, the witness says the car responsible just nicked his left rear fender, from which a slight shock was felt; and the impression of the witness was that the collision threw his car over on the railway track, so that after the impact the right wheels of the car were both over between the rails. The witness says that as the fast moving oncoming car approached defendant slightly slackened his speed. His car was equipped with a wiper on the windshield, and though it was raining he was able to see ahead a reasonable *721 distance considering the time of the night and the character of the weather and the blinding effect of the lights on the approaching car. Defendant testified that when he sighted the approaching car, it was more than three times the length of the court room, estimated from seventy to eighty feet, or about 240 feet away. And in response to questions by plaintiff's counsel, defendant testified:
"Q. And you saw that he was taking up, you saw at that distance that he was taking up the most of the road with his car? A. I saw that he was at that time, but I didn't know that he was going to continue that way. Q. You assumed then that at the proper time he would yield to you your proportion of the road to which you felt you were entitled? A. Yes, sir. Q. From the time you first saw this large car approaching you, could you, with your car at the rate it was traveling have stopped before the passing car reached you? A. Yes, sir. Q. And if she had been on the outside of the street car rail instead of over inside the tracks, wouldn't it have been impossible for you to have failed to see her for say 60 to 75 feet before you struck her? A. No, sir. I think it would have been impossible for me to see her if she had been anywhere on the ties."
Appreciating the force of the testimony of the eyewitnesses as to the rate of speed and the evidence tending to show that the accident was an unavoidable one so far as defendant was concerned, plaintiff's counsel rely mainly on the physical facts occurring at the time; first, the fact that defendant's car went over the railroad in view of the obstacles in the way, and the distance it ran on the ties after it struck deceased. Silverman says he thinks they ran over some ties, whether inside or outside the rails he don't know, before they struck Mrs. Fleming; that after they stopped they found the body of Mrs. Fleming about ten feet from the rear end of defendant's car; but he couldn't say how far the car ran after the second automobile passed them before it went over the rail of the street car track; he knew they bumped over several rails before they came to a stop. He couldn't say whether defendant applied the brakes before striking the street car track; thinks the car must have skidded, but couldn't say how *722 much. He says he noticed the speedometer as they were leaving Monongah, and that they were running around fifteen or eighteen miles per hour; that defendant was driving carefully all the way and within the speed limit of the law; and that when they sighted the car that drove them aside, it was running at a high rate of speed and taking nearly all the road; and that as a result it grazed defendant's car in passing, while he was doing all he could to avoid it. When Mrs. Fleming's body was found, as both witnesses say, she was lying in the middle of the track, face upward, with her feet toward Fairmont, the direction in which the car was going. Silverman thinks the car must have passed over her body. There is some evidence that defendant's car, including its length and the six or eight ties passed over after leaving Mrs. Fleming's body, tending to show that it ran some 25 or 26 feet after striking her. It is impossible to detail all the facts; but we have recited the main ones.
Now the question presented is, was there sufficient evidence of negligence, either as to the speed of the car, or as to defendant's control and management of the car, under all the facts and circumstances, to carry the case to the jury on those questions? It is suggested that it was the duty of the defendant, on seeing the approach of the other car and that it was occupying so much of the road, to stop his car. But is this the law? We think not. We said in Ewing v. Chapman,
Counsel for plaintiff appeal to the rule of res ipsaloquitur, which simply is that where the injury complained of would naturally not have been inflicted if the one having control of the instrumentality doing the act had not been at fault, a prima facie case of negligence is thereby established. This rule simply is that the fact of the occurrence warrants the inference of negligence. Hines v. Beard,
On the proposition that the evidence was sufficient to carry the case to the jury on the question of defendant's negligence as alleged, counsel for plaintiff cite us to the following decisions: Rogles v. United Railways Co. (Mo.),
The principle which we think controls the decision of this case is that which is applicable when the injury is the result of the negligent act of a third person, in which case the person sued is not liable. Anderson v. Baltimore OhioRailroad Company,
Our conclusion is to reverse the judgment, set aside the verdict and award the defendant a new trial.
Judgment reversed; verdict set aside; new trial awarded. *728