145 S.E. 756 | W. Va. | 1928
The Charleston Laundry Company complains of a judgment of the circuit court of Kanawha county affirming a judgment entered by the common pleas court of said county on a $5,500.00 verdict in favor of the administrator of Marjorie McLeod, in an action to recover for unlawful death.
The accident occurred just after the beginning of a blinding and driving rain storm in the 1500 block on Lee street, in the city of Charleston, at a point other than a street intersection. Midway of the block, and on the north side of the street, a walkway, known as Ruffner Walk, connects the north sidewalk of Lee with the south sidewalk of Washington street. Mr. McLeod and his wife, the decedent, lived on this walk, one hundred feet back from Lee. Prior to the accident, Dr. and Mrs. Banks had parked their car on the right (south) side of Lee street and opposite and slightly to the east of Ruffner Walk, for the purpose of picking up the McLeods and driving them to a party. As the latter were in the act of leaving their home to join the parties waiting in the car, the storm broke in all its fury, and the wife and husband, in the order named, started to run towards Lee street. On reaching the north curb of Lee street, Mrs. McLeod hesitated and with a parasol pulled down over her face and right shoulder to keep off the driving rain ran into the street where she was struck by defendant's truck, going east on Lee. There is but one slight deflection in the street in this block — the street being practically straight. The driver had just made a stop in the same block two hundred yards west of the point of the accident. The rain started as he was leaving. The truck, according to his testimony and that of his companion, was within eight to ten feet of her when she suddenly appeared in the center of the street. He swerved to the right as far as he could and applied the foot brake and reached for the emergency when unable to get away from her. The body of Mrs. McLeod, which was thrown into the air, caught on the left fender where it remained for a short *363 distance before falling into the street under the wheels of the car. The driver and companion locate the point where the truck stopped at about thirty-five or forty feet from the point of impact, while the plaintiff's witnesses place it at about twice that distance. The driver and his companion claim that the former was going fifteen miles per hour, which is within the rate prescribed by ordinance, while plaintiff and some of his witnesses (none of whom seems to have seen the car prior to the impact) estimate the speed at which the car was going at thirty to forty miles per hour — basing their conclusions largely upon the distance traveled by the car after the impact and before coming to a complete stop.
The points of error stressed are: (1) the insufficiency of the declaration; (2) the giving of instructions for the plaintiff numbers one, two and three, which were in effect predicated on the doctrine of the last clear chance; and the refusal of defendant's peremptory instruction.
While it was technical error to overrule the demurrer to the declaration, since the latter did not allege the appointment of the administrator, a new trial on that ground alone would be limited to the issue of the appointment of such administrator.Moss v. Railway Company,
The relative duties imposed by the law on the pedestrian and the user of the motor vehicle on the public street are aptly expressed in 42 C. J. 1150-1151:
"There is no imperative rule requiring a pedestrian about to cross a public street or highway to stop, or to look and listen for approaching motor vehicles, or to look for vehicles in intersecting streets, under penalty of being deemed negligent as a matter of law upon omission thereof, and whether or not a failure so to do is negligence is ordinarily a question of fact under the circumstances; but under the rule requiring every user of the highway to exercise reasonable care for his own safety and in so doing to make reasonable use of his faculties and intelligence to discover impending *364 danger, one who fails to look or listen for approaching vehicles before entering upon the traveled part of a street for the purpose of crossing it is usually negligent in fact. Thus a pedestrian who, without looking, steps suddenly into a roadway, or crosses with his head down, or with an umbrella so held as to cut off his vision, or who, having advanced into the traveled portion of a street, steps back into the path of a motor vehicle without observing whether the way is clear has been held guilty of negligence."
The old doctrine that negligence, however slight, on the part of the plaintiff contributing to the injury would bar him from recovering has given place in our jurisprudence to the benign rule of the last clear chance; that is, though the plaintiff may have negligently placed himself in a position of peril, if the defendant sees him in such place of peril, and has time to avoid injuring him, the law requires him to do so. The plaintiff here by his instructions substantially based his right to recovery by invoking the doctrine of last clear chance. This attitude taken by him presupposes negligence either primary or contributory on the part of plaintiff's intestate. McGowan v. Tayman,
It is equally clear that mere knowledge or notice of the intestate's danger, without sufficient opportunity to effectively act upon such knowledge or notice, cannot be made the basis of a driver's liability. The authorities are unanimous in holding, therefore, that there must be an appreciable interval of time intervening between the injury and the driver's knowledge or notice of the intestate's dangerous situation. U.S. Spruce Lumber Co. v. Shumate,
Let us examine the evidence in this case to see if the plaintiff has proven that his intestate's peril was discovered by the driver, or in the exercise of ordinary care could have been discovered, in time to avert the accident. It is undisputed that there was a terrific blinding rain storm at the time of the accident; that Mrs. McLeod was running across the street, holding her umbrella down over her head and right shoulder, pointed into the rain, so that she could not see vehicles approaching in the direction from which the rain came; and that she was about the middle of Lee street when struck. There is no evidence as to how far distant the truck was from the spot where the accident occurred when Mrs. McLeod started to run across the street. According to the driver's testimony, supplemented by that of the boy riding in the *366
seat with him, his truck was within eight or ten feet of the decedent when he suddenly observed her. It is evident under the undisputed facts here that the driver could not have stopped his truck, owing to the slippery condition of the street occasioned by the storm, in time to save decedent after she stepped from the sidewalk into the street in front of the oncoming car. As the Virginia court said: "The time and opportunity available were such that the mental and physical faculties would have had to act with more than human precision and with the quickness of electricity to have avoided its consequences." Railway Co. v. Shiflett's Adm'x.,
Moreover, the books hold that the doctrine of the last clear chance is a duty imposed by law on both the plaintiff and defendant, and that, if being in plain view of each other, and with equal opportunity to prevent the accident, they are guilty of concurring negligence, there can be no recovery. Here the decedent had equal opportunity on reaching the curb of the street, before attempting to cross it, to observe the approach of the car, that the driver of the car had to observe the pedestrian. It is stated in 29 Cyc. 531: "This rule (last clear chance) has no application where the negligence of the person injured and of the defendant are concurrent, each of which at the very time when the accident occurs contributes to it."
There must be evidence of circumstances surrounding the injury, of probative value, to justify the court in instructing upon the doctrine of the last clear chance. Instruction number two is evidently based on Deputy v. Kimmell,
The case of Ritter v. Hicks,
Ordinarily, the matter of contributory negligence is a question for jury determination. But counsel for defendant insists that the decedent was negligent as a matter of law. We find that appellate courts have dealt with cases strikingly similar to the present one. In Shoe Company v. Ormsby's Adm'r,
In this jurisdiction where the facts which control are not disputed and are such that reasonable minds can draw but one conclusion from them, the question of contributory negligence barring recovery is one of law for the court. Law and fact clearly bring the instant case within this rule. Therefore, the trial court should have given to the jury the peremptory *370 instruction to find for the defendant. This ruling, of course, only applies to the record here made. As this case must be remanded for a new trial, the record on such trial may be materially different in substance.
Judgment reversed; verdict set aside; new trial awarded.