185 S.E. 553 | W. Va. | 1936
This action was brought by Clyde H. Scott against the Hoosier Engineering Company before a justice of the peace of Cabell County. From a judgment in favor of the plaintiff for $99.00, the defendant appealed to the Court of Common Pleas of that county where, upon trial before a jury, a judgment was rendered in favor of the plaintiff for $125.00. From that judgment, the defendant applied for a writ of error to the Circuit Court of Cabell County, and from the judgment of that court denying the application, this writ of error is prosecuted.
The accident forming the basis of the plaintiff's claim occurred on what is called the Krauts Creek Road as the plaintiff was returning from a point in Wayne County to the City of Huntington. The accident occurred between twelve noon and one o'clock sometime during February, *396 1935. The road was of gravel, the improved portion being about eighteen feet wide and shoulders extending it to about the width of twenty-four feet. It was very icy. Parked on the right side of the road in the direction in which the plaintiff was proceeding was a truck belonging to the defendant. The testimony varies as to the exact position of this truck, but looking upon the evidence most favorably to the plaintiff, it was entirely upon the improved portion of the road. Another truck was parked just beyond that of the defendant with which the plaintiff collided and was facing in the same direction that the plaintiff was proceeding on the right side of the road. With this second truck, we are not, however, concerned. The plaintiff had just crossed a hill or "rise" which apparently had obstructed his vision of the road ahead. From the top of the hill or "rise" there was nothing to prevent his seeing everything on the road. He testifies that he did not see the truck of the defendant until he was within twenty-five or thirty feet of it, and that he did not try to turn out to avoid it until he was within about twenty feet of it. In turning out, or in attempting to do so, plaintiff could not control his automobile on account of the condition of the road, and the slope of the crown toward the outside from the middle. He was travelling at approximately twenty miles an hour, and his car collided with the right front side of the truck, striking the right front side of his own car and damaging his automobile to the extent of $130.00, according to the proof. According to the plaintiff's own admission, he could have seen the truck of the defendant when he was 150 feet away, had he been looking.
No brief is filed for the defendant in error, but recovery apparently was sought on the theory that the conduct of the defendant in having its truck parked on the public highway was in violation of section 2, article 8, chapter 17 of the Code, requiring that all vehicles not in motion be placed with their sides as near the right-hand side of the highway as practicable. As to whether the act of the defendant actually violated this section or not, we are, in the light of the verdict *397
of the jury, not concerned. In the state of the record before us, it must be conceded for the purposes of this writ of error that the conduct of the defendant was in fact a violation of the statute. But even with this conceded, the plaintiff, of course, could not recover unless the evidence showed that the act of the defendant in violating the statute was the proximate cause of the damage. Ambrose v. Young,
Reversed and remanded.