69 W. Va. 18 | W. Va. | 1911
Defendant operates an electric car line between the cities of Wheeling and Benwood, and through Benwood. Plaintiff attempted to cross defendant’s tracks at a public street crossing in Benwood, and was run over by defendant’s car. and was maimed. She brought an action against the defendant for negligently causing her injury. Defendant offered no evidence, and on its motion the court struck out plaintiff’s evidence, and directed a verdict for the defendant, and entered final judgment in its favor. Plaintiff has brought the ease here on writ of error. Defendant insists that plaintiff’s evidence proves such contributory negligence as precludes a recovery.
The proof is that plaintiff was about forty-one years of age, strong and in good health, at the time of the accident; that about four or five o’clock on the 11th of April, 1906, she left her home to go to Dolan’s store on the southeast corner of McMechen and Sixth streets; that she came to McMechen street by way of an alley which intersects it some distance north of Sixth street crossing, and followed down McMechen street, on the west side thereof, to Sixth street crossing, and left the sidewalk at the intersection of the streets and started diagonally across the street; that when she was almost across defendant’s track she was struck by a southbound electric car running at the rate of fifteen or twenty miles an hour, and was thrown forward upon the track a distance of some twelve of fifteen feet, and the wheels of the car passed over her leg and cut it off; that from the time she came upon McMechen street until she reached the point where she left the sidewalk to cross diagonally over the intersection of Mc-Mechen and Sixth streets she was going southward, with her back toward the car which was coming in the same direction; that after leaving the.sidewalk, and when at a point about midway between the curb and the car tracks, she glanced back over her shoulder to see-if there was an approaching car and saw none.
Upon this state of facts can it be said, as matter of law, that plaintiff was guilty of contributory negligence? If it can, then the judgment of the lower court is right, and it should be affirmed; but if not, then the question should have been submitted to the jury, and the judgment is erroneous.
There was a. former trial in this case which was reviewed on writ of error to this Court, and will be found reported in 63 W. Va. 522. It was first tried upon conflicting testimony; but the case is now before us upon different evidence which presents facts which, according to the report of the former decision, did not then appear. The case is now to be reviewed upon the un-contradicted testimony of plaintiff and her witnesses, which the
Granting that plaintiff was negligent in the first instance, in not taking reasonable precaution to ascertain whether a car was approaching, before she attempted to cross the tracks, still it does not follow that such negligence was the proximate cause of her injury. If the defendant was guilty of a subsequent act of negligence, either in the omission of a duty, or in the commission of a wrongful act, such supervening negligence becomes, in law, the proximate cause of the injury; and plaintiff’s prior neg-' ligence will not defeat her recovery. “It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury -was more immediately caused by the defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him.” 1 ■Slier. & Red. on Negligence, sec. 99.
The rights of the Traction Company to the use of the street, at Hie crossing, is not superior to the rights of pedestrians. Their rights at that point are equal; and the law requires that both shall exercise reasonable care. The law does not apply the same rule in determining the relative rights between a street ear company and other persons in the use of a public street crossing that it applies in case of a steam railroad crossing a public highway. The rights of the former are more analogous to the rights of ordinary vehicles. 2 Slier. & Red. on Negligence, section 485a, and numerous cases cited in the notes; Richmond &c. Co. v. Garthright, 92 Va. 627; Bass’ A'dm’r. v. Norfolk &c. Co., 100 Va. 1; Richmond Traction Co. v. Clarke, 101 Va. 382.
Plaintiff’s negligence in failing to observe the approaching car would not excuse defendant from the duty of exercising reasonable care to avoid doing her injury. If the motorman saw plaintiff in her perilous situation, or if he could have seen her by the exercise of reasonable caution, and could thereafter have avoided the accident by sounding the alarm, or by checking the speed of the car, and failed to do so, then his failure to do so was a supervening independent act, or acts, of negligence which were the proximate cause of plaintiff’s injury. The defendant’s
In view of the uncontradicted testimony of witnesses proving negligence of defendant’s motorman, it cannot be said, as matter of law, that plaintiff’s negligence was the proximate cause of her injury, or that it combined with defendant’s negligence as the proximate cause. The trial court erred in excluding plaintiff’s evidence and directing a verdict for the defendant. The judgment will be reversed, the verdict set aside, and the case remanded for a new trial.
Reversed and Remanded for New Trial.