191 S.E. 558 | W. Va. | 1937
This is an action at law of trespass on the case instituted by Walter M. Meyn against the Dulaney-Miller Auto Company, a corporation, and Bart Scanlon, to recover damages for personal injury growing out of an automobile accident. To a judgment based on a verdict in the amount of $28,000.00, rendered in favor of the plaintiff and against both defendants, the defendants obtained this writ of error.
About 11:55 P. M., July 13, 1934, the plaintiff was struck and injured by an automobile driven by the defendant, Scanlon, and owned by the defendant, Dulaney-Miller Auto Company. The accident occurred on Market Street, one of the main streets in the City of Wheeling, between Twelfth and Eleventh Streets. At the time of the accident, the plaintiff, according to his own story, was proceeding across Market Street from the easterly to the westerly pavement in a diagonal direction at an angle of about thirty degrees north of west. At this place, there was no crosswalk. The traffic ordinances then in force in the City of Wheeling provided:
"(a) Pedestrians shall cross streets at cross-walks or at end of block; and where there is no traffic officer, traffic light or other traffic controlling device, and where full view of the crosswalk is not obscured from the view of the on-coming vehicular traffic, the pedestrian shall have the right of way; provided, however, that this right is restricted to mean that the pedestrian shall exercise all due precaution in crossing and be heedful of the difference in distance covered by a mechanical-driven vehicle and a pedestrian in the same period of time.
"(b) Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right-of-way to vehicles upon the roadway, provided that this provision shall not relieve the driver *548 of a vehicle from the duty to exercise due care for the safety of pedestrians."
The Dulaney Company was engaged in the business of selling automobiles, new and used. Scanlon was in charge of, and also a salesman in, the company's used car department. He was paid a salary of $100.00 per month to operate the department with commissions of two per cent on sales made by him personally, and one per cent on sales made by salesmen under him. He could sell used cars, including the car in which he was driving at the time of the accident, at all times of the day or night, although his regular hours of employment were between 8:00 A. M. and 9:00 P. M. The used car department, according to custom, closed at 9:00 P. M. This department was located at the defendant company's regular place of business at Twenty-third and Market Streets, a number of blocks directly south of the place of the accident. Scanlon had the right to use the car in question in going to, and returning from, his work. He also had the right to use it and other used cars for his company's business and his own pleasure. However, he was expected to purchase his own gasoline when he used such cars for pleasure. At the time of the accident, Scanlon lived in the "Out the Pike" section of Wheeling, a residential section some distance from the defendant company's location, the place of accident being on the route between the company's place of business and Scanlon's home.
On the night in question, Scanlon used the car to attend a Shriners' picnic at Wheeling Park. From Wheeling Park, he took two young women, whom he met there, to their homes in Martin's Ferry, and then returned to the Washington Restaurant in Wheeling, which restaurant is situated on Market Street a short distance south of the place of accident. He left the restaurant about 11:30 P. M., and drove south on Market Street in a direction opposite from his home to the street in front of the Delaney Company's place of business for the purpose of assuring himself that the used cars belonging to the company had been removed from the street to *549 their proper place of storage for the night. While there, he did not leave the car, but satisfied himself by a view from the driver's seat. After he had assured himself, he drove north on Market Street toward his home, and incidentally, to the place of accident.
From its intersection with Twelfth Street to a point some distance north of the place of the accident, Market Street has an even width of approximately thirty-seven and one-half feet. It has sidewalks on each side, having a width of about thirteen and one-half feet. Approximately in the center of Market Street at the place where the accident occurred, there was a street car track. The eastern rail of this track was about sixteen and one-half feet west of the eastern curb of Market Street. On the west, the track was double rail. The distance, as shown by the map in evidence, from the northerly intersection line of Twelfth and Market Streets to the place where the plaintiff's body was found immediately after the accident is approximately 140 feet, and to the place where the plaintiff testified he was struck by the defendant's car, 120 feet. Although Market Street is a busy street of the City of Wheeling, it appears from the record that at the time of the accident, the traffic was light.
The plaintiff testified that when struck, he was proceeding across Market Street from the easterly to the westerly pavement in a diagonal direction at an angle of about thirty degrees; that he was proceeding in a northwesterly direction, and therefore had his back slightly to northbound traffic; that he looked south as he stepped off the curb to see about the traffic light at Twelfth and Market Streets, and found it red for north and south traffic; that he walked slowly due to an operation which he had had some months before; that from the time he first stepped from the curb until he reached a point between the center of the car track, he kept his head turned southward watching the traffic; that in the center of the car track, he again glanced at the traffic light and found it still red; then he glanced to the north, and instantly was hit, knocked down, became unconscious and recalled nothing further about the accident. *550 He further testifies that he did not see the defendant's automobile approaching nor did he know what had hit him. The evidence showed that he had defective vision, which was corrected in one eye only. Plaintiff further testified that there was one automobile parked along the eastern curb of Market Street in front of the Postal Telegraph Company's office, a short distance to the north of him; but from the place where he first stepped off the curb to the intersection of Twelfth and Market Streets, there were no automobiles parked along said eastern curb. He is supported in this statement by the testimony of several witnesses, although he is contradicted by the testimony of the defendant and a number of other witnesses.
On the other hand, Scanlon's account of the accident differs widely from that given by the plaintiff. Scanlon says that after leaving the Dulaney Company's place, he proceeded northward along Market Street toward Twelfth Street; that at Twelfth Street, he was stopped by the traffic light being red; that he waited there until the light turned green, when he placed his car in low gear and proceeded in low gear for a distance of about fifteen feet north of the intersection line of Twelfth and Market Streets; that he then shifted to, and continued in, second gear until he struck the plaintiff; and that when he struck the plaintiff, he was going at a speed of about fifteen miles an hour and the western wheels of his car were about three feet cast of the eastern rail of the street car company's tracks. He further testified that the plaintiff suddenly stepped from behind a car parked along the eastern curb of Market Street into his car, and was struck by its right fender; that he did not see the plaintiff until he was within fifteen feet of him; that upon seeing the plaintiff, he turned his car to the left in an effort to avert the accident; that at the time he saw the plaintiff, he saw the light of a car passing him in a southerly direction; that when he struck the plaintiff, he saw a dark, heavy object fall over the front fender of his car on the right; that he did not identify this object as being the body of the plaintiff. He further testified *551 that when he saw the plaintiff, he turned his car to the left in order to avert the accident; that he did not see the plaintiff after he first saw him; and that "it might have been better if I had tried to stop, I might have cleared him then, I don't know."
The defendants claim that from the time the plaintiff stepped from the front of the parked car, Scanlon did not have time to stop or to avert the accident; that the plaintiff was dressed in a dark suit; that the lighting conditions were poor; and that it would be impossible, under the circumstances, to see a person dressed like the plaintiff at a distance of more than thirty-five feet. Plaintiff, however, produced evidence to the effect that lighting conditions were good; that a person could be seen crossing the street for a distance of one block, and upon cross-examination, Scanlon was caused to testify that he could see a person crossing the street for a distance of 150 to 200 feet. Scanlon also testified that with deflected beam, he could see 75 feet, and with bright lights he could see 150 feet.
The defendants further contend that the defendant, Scanlon, was driving at the rate of fifteen miles an hour. However, Scanlon's testimony as to speed is contradicted by the testimony of one Ford, a defense witness, who testified that he was standing at the northeastern corner of Twelfth and Market Streets when Scanlon's car passed north, and that the same was being driven at the rate of twenty-five to thirty miles per hour. The statement made to police officers by Scanlon that he was going from fifteen to twenty miles an hour was confined by the instruction of the court only to Scanlon's liability.
The position is also taken that there was no negligence on the part of Scanlon. Defendants say that there is not sufficient evidence for the jury to consider on the issue of whether Scanlon failed to keep a proper lookout and whether he was going at an improper rate of speed. On both these questions, we have the conflict of testimony, as has been narrated just above. However, there are certain physical facts which should also be considered and which it was proper for the jury to consider. When the *552 accident occurred, there were street lights along Market Street at intervals, every other light being lit, though their candlepower had been reduced by the city. The traffic at that time was comparatively light; the view up the center of Market Street, at least along that part of Market Street on which Scanlon said he was driving, was unobstructed. Immediately after being struck, Meyn's body was found about twenty-four feet north of the place where he testified he was struck; and Scanlon's car was from three to twenty feet to the north of the body. In addition, the right headlight and the cross-bar in the front of Scanlon's car were broken. Also, the accident caused a dent to be made on the right side of the hood. Several witnesses testified that a loud noise was created by the collision.
Undoubtedly, it was within the province of the jury to have accepted Scanlon's version of the accident. Had they done so, their verdict would have been for the defendants. Such a verdict would have been warranted by the evidence. That, however, is not the situation which confronts this court. Here, we have a conflict of the evidence and a verdict in favor of the plaintiff. In determining whether this verdict should be sustained or set aside, it is necessary for us to consider whether or not there is sufficient evidence of probative force upon which, if taken as true, a jury composed of twelve reasonable men would be justified in sustaining the plaintiff's theory of the case.
The question of the Dulaney Company's liability is raised by the defendants. Counsel cite as error the action of the trial court (1) in submitting to the jury the question as to whether or not Scanlon was acting within the scope of his authority or employment; and (2) in instructing the jury that Scanlon was not an independent contractor. Immediately after plaintiff rested, J. M. Miller, vice-president and manager of the Dulaney Company, and Scanlon testified for the defendants. These witnesses at this time were examined and cross-examined only as to Scanlon's relation to the company. Before any *553 other testimony was introduced, the company rested its case.
The stipulation as to the company's ownershipofthe automobile created a rebuttable presumption that he was acting within the scope of his employment. Ercole v. Daniel,
Did the trial court err in refusing to submit to the jury the question whether or not Scanlon, at the time of the accident, was an independent contractor? We think not. For the defendant, it is suggested that the fact that Scanlon was also manager of the used car department did not make him a servant of the company so far as his duties as a salesman were concerned. When, however, he went to inspect the used car department, he was acting in his capacity as the head of that department and as such, was the company's employee and not an independent contractor. One of the tests of distinction between an independent contractor and an agent or employee is "whether the employer retained the right, or had the right under the contract, to control the mode or manner in which the work was to be done." 5 Am. Juris., 727, sec. *556
392; Dishman v. Whitney,
"The test of the relation between one having work done and the workman consists in the employer's right or lack of right to supervise the work. If that right exists, the relation is that of master and servant. If that right does not exist, the relation is that of employer and independent contractor." Rogers v. Boyers, supra.
"An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." (Italics supplied.) Restatement, 1 Agency, sec. 2 (3).
Thus the test is not the exercise of control, but the right tocontrol. While the record contains some elements of Scanlon's freedom, nothing therein suggests that the company did not have the right to control or supervise Scanlon's work. We think it was not the province of the jury in the instant case to pass on the question whether or not Scanlon was an independent contractor. The trial court held, as a matter of law, that he was not. In so holding, there was no error.
Defendants contend, that the plaintiff, according to his own story, was walking between intersections across Market Street in a diagonal direction in violation of the city ordinance, and, therefore, was guilty of negligence which contributed proximately to his injury. Of course, if this is true, the plaintiff, except for the intervention of the last clear chance doctrine, is precluded from recovery. We cannot, however, say as a matter of law that the violation of the ordinance proximately was negligence which contributed to the accident. Plaintiff's story must be taken as true, because it is most favorable to him, and was considered by the jury in reaching its verdict. Wiseman v. Ryan,
It is not negligence per se, in the absence of an ordinance, for a pedestrian to cross a street between intersections. Generally, a motorist must keep a lookout for pedestrians, not only at street crossings, but between intersections. Huddy, Automobiles, section 435, and note; 2 Ruling Case Law, 1186; 14 A.L.R., p. 1183; 67 A.L.R., p. 320, and cases cited. This court has held (Walker v. Bedwinek,
There is a great diversity of American decisions on the question as to whether the violation of the ordinance constitutes negligence per se which will preclude recovery, or is simply evidence of negligence. 12 Va. Law Review, 503. Almost uniformly, however, the courts have held that to preclude recovery, the plaintiff's violation of the ordinance must be the proximate cause or contribute proximately to the injury. This question, under the great weight of American authority, is a question of fact for the jury. McKeon v.Delbridge,
Under the ordinance in question, the plaintiff and *558
Scanlon both had the duty to use due care. Paragraph (b) of the ordinance provides that a pedestrian crossing at a point other than a crosswalk shall yield the right-of-way to vehicles; and that such ordinace expressly does not relieve the driver of the vehicle from the duty to exercise due care for the safety of the pedestrian crossing between intersections. The legislative intent underlying this ordinance was to place a higher degree of care on the pedestrian crossing streets at places other than crosswalks than at the regular crosswalk, without relieving the motorist of his duty to use due care. Such an ordinance should be construed reasonably, and should require pedestrians to yield their right to the street only when necessity requires it to prevent stopping a vehicle. Green v. Ruffin,
In Knutson v. McMahan et ux.,
"Pedestrians shall not cross any street in the city except at crosswalks, and that vehicles shall have the right-of-way between intersections and pedestrians at crosswalks."
The court held that the decedent was guilty of contributory negligence as a matter of law, but that it did not defeat recovery. Syllabus 3 reads: "Pedestrian's negligence as matter of law, in attempting to cross street between intersections in violation of ordinance, does not defeat recovery for injuries inflicted by automobile, unless such negligence materially contributed to accident."
Because the ordinance in the instant case did not relieve Scanlon from his duty to use due care toward pedestrians crossing the street between intersections, the case ofRitter v. Hicks, supra, is a strikingly similar case. There, this court affirmed a judgment in favor of a pedestrian against the driver of an automobile. The *559
plaintiff was proceeding between cross streets from one side of the street to the other. At the place of accident, the street measured 33.7 feet. In the instant case, the street measured slightly over 32 feet. The court held that the plaintiff was not guilty of contributory negligence. If the plaintiff's story is true, and we must view it in the light of the verdict of the jury, it seems to us that it was reasonable for the jury to say that the plaintiff, having looked constantly as he was crossing the street, was not guilty of negligence which contributed proximately toward the accident. Because, however, the plaintiff technically violated the ordinance, the trial court properly submitted the question of contributory negligence to the jury. To do so is in line with the great weight of American authority. Maneff v. Lamer,
We have examined the instructions dealing with contributory negligence, and find no prejudicial error. However, defendants' counsel say that the court erroneously instructed the jury to determine if the defendants were negligent before determining whether the plaintiff was negligent — when plaintiff's own evidence showed negligence on his part. They refer us to a part of the court's charge, and cite Culp v. Virginian Railway Co.,
Defendants' counsel strenuously maintain that this case does not admit of the application of the doctrine of last clear chance. They say the plaintiff stepped suddenly from behind the front of a parked car into Scanlon's car; that plaintiff's dark clothing, coupled with poor lighting conditions and visibility, made it difficult for Scanlon to see the plaintiff; that Scanlon did not see the plaintiff until he was fifteen feet away, and then he had no time to avert the accident. If these were the only facts in the case, there would be grave doubt as to the right of the jury to consider the application of the doctrine. However, the jury had a right to disregard this testimony, and accept the testimony supporting the plaintiff's theory of the case. Key v. Charleston W. C. Ry. Co.,
It is unnecessary at this point to state in further detail Scanlon's or plaintiff's stories. The jury had a right to infer from the evidence not only that Scanlon, by the exercise of due care, could have seen the plaintiff, but as a matter of fact, he actually did see the plaintiff walking diagonally across the street in the middle of the block with his back partly toward traffic, which, of itself, was a perilous position. And having seen the plaintiff in this position, he was, under the weight of authority, in duty bound to realize plaintiff's peril, and to take steps to avert the accident.
Here, the jury had a right to say, taking the plaintiff's *561
story as true, that the defendant actually saw the plaintiff's position, and therefore was under a duty to realize his peril. The jury had a right to say this, although Scanlon testified that he did not see the plaintiff until he was fifteen feet away. Key v. Charleston W. C. Ry. Co., supra. This being so, under the great weight of authority, the last clear chance doctrine should apply, provided there was sufficient interval of time after Scanlon saw the plaintiff's position for him to avert the accident. Chunn v. City Suburban Ry. of Washington,
In Smith v. Gould, supra, syllabus one reads:
"The last clear chance doctrine is properly extended to a case where an automobilist, by reason of failure by him in his plain duty to maintain a lookout for the persons and property of others on the highway, commensurate with the danger indicated by attendant facts and surrounding circumstances known to him, and which are such as to have put him on the alert, causes injury to another (though such other was himself concurrently negligent), where the peril should have been seen and comprehended by the automobilist and the injury avoided in the exercise of reasonable care commensurate with the situation. Such case constitutes an exception to the general rule which *562 precludes recovery by a plaintiff whose negligence has concurred with the defendant's."
The last sentence of that point of the syllabus should be taken to mean that a negligent plaintiff, oblivious of impending danger, or unable to extricate himself, may nevertheless recover for injuries, where the defendant knew of the plaintiff's situation, and, under the circumstances, in the exercise of reasonable care, should have realized the plaintiff's peril, and, on such realization, could have avoided the injury.
The submission to the jury of the last clear chance doctrine by plaintiff's instructions Nos. 5, 8 and 15 is also assigned as error. Under these instructions, the jury was permitted to find for the plaintiff, though himself negligent and in a position of peril, if in the exercise of reasonable care the defendant could have seen the plaintiff in said position in sufficient time to avert injuring him and failed to do so. Where a plaintiff cannot escape from his position of peril, it is immaterial whether the defendant had actual knowledge of plaintiff's position and was under a duty to realize the peril, or by the exercise of reasonable care could have seen and realized plaintiff's peril. 2 Restatement, Torts, sec. 479.
In the absence of actual knowledge by defendant of plaintiff's position of peril, a negligent plaintiff in a position of peril from which he can escape cannot recover under the last clear chance doctrine unless oblivious of his impending danger, and the defendant knew of the plaintiff's situation, and, under the circumstances, in the exercise of reasonable care, should have realized the plaintiff's peril, and, on such realization, could have avoided the injury.McLeod, Admr., etc. v. Charleston Laundry Company,
The court's refusal to give defendants' instructions Nos. 20 and 21 on concurrent negligence is assigned as error. These instructions improperly exclude the application of the last clear chance doctrine and ignore the fact that concurrent negligence will not preclude recovery unless there is a proper causal connection between it and the plaintiff's injury.
Of course, the doctrine of last clear chance "implies a sufficient interval of time for both appreciation of the dangerous situation and effective effort to relieve it."Milby v. Diggs,
Defendants' counsel assign as error the trial court's action in overruling the demurrer to the declaration. They say the declaration states two inconsistent causes of action: (1) that Scanlon's negligence caused the injury and that plaintiff was using due care; and (2) that Scanlon saw plaintiff was in danger in time to avert the accident and did not do so. The declaration, we think, is sufficiently broad in its allegations to permit recovery on the ground of plaintiff's primary negligence, as well as on the ground that Scanlon failed to avert the accident after he saw the plaintiff's danger. It presents both of plaintiff's theories, but that does not render it demurrable. At common law duplicity was a mere formal defect constituting ground of special demurrer, and, as the special demurrer has been abolished by statute in this state, such defect now cannot be reached by demurrer. Code
Under assignment of error 8, defendants' counsel complain that medical experts were permitted to give their opinions in the presence of other medical experts in violation of a stipulation providing otherwise. Clearly, a misunderstanding occurred between counsel. This misunderstanding was unfortunate. We, however, find in it no prejudicial error in view of the fact that defendants' *565 counsel themselves placed medical witnesses on the stand, who, in turn, gave their opinion covering the whole scope of plaintiff's claimed injury. Whatever legal effect the stipulation may have had in the first instance was waived by defendants' counsel. In making this statement, we have in mind that the stipulation was made prior to the calling of Dr. Clovis, whose testimony dealt largely with the reading of X-ray pictures, and necessarily was concerned with matters of expert opinion; and while Dr. Clovis was testifying, Dr. Weiler, a defense witness, was also present in court and heard this testimony. Upon being called by defendants' counsel, he was examined in chief concerning his opinion of the nature and effect of plaintiff's injury.
Defendants' counsel rely upon thirty-two main and sub-assignments of error. We have considered all of them in the light of the record. Time will not permit us to discuss them in detail. With the exception of plaintiff's instructions Nos. 5, 8 and 15, we find no error in the record.
Because of the error in said instructions, the judgment is reversed, the verdict of the jury set aside and a new trial awarded.
Judgment reversed; verdict set aside; new trial awarded.