91 W. Va. 528 | W. Va. | 1922
The defendant seeks to reverse a judgment for $5,000 rendered by the circuit court of Marshall County for personal injuries received by plaintiff, a boy about eight years of age.
The injury occurred near the intersection of Sixteenth and Marshall Streets in the City of Benwood. Marshall Street is but twenty feet wide. It extends north and south, and is intersected by Sixteenth Street running east and west. Defendant operates a street car line from the City of Wheeling, 'running through the cities of Benwood and McMechen to Moundsville. This line is located on the west side of Marshall street as it runs through Benwood, and occupies approximately eight feet of the street, which was paved the entire width. On the day of the injury, the boy’s father, Roscoe C. Weaver, a farmer*, was operating* a market wagon. He drove his team south of Sixteenth street, stopped it on the east side of Marshall street headed south, got out and crossed the street to make a sale of strawberries, leaving his boy and the boy’s grandfather in charge of the team. He came back, took charge of the team, and turned his wagon to the right to go north. In doing so, on account of the narrow street, he was compelled to drive over on the part of the street between the rails of the defendant. One of the wheels on the left side of the wagon got on the west side of the east rail. There is some evidence that the bricks between the rails were loosely laid where he turned. After turning north, Mr. Weaver tried to turn his team further to the right, so as to get the wheel of the wagon on the east side of the east rail, but the wheel caught and slid along the rail, the grating noise or the whipping of the wagon tongue, or both, scaring his team, and it started to run away. It ran
We will take up the assignments of error in their order.
1. The defendant offered in evidence certain photographs taken some two years after the accident. These were offered on the cross-examination of the plaintiff’s witness, Bower, and were let in at that stage to show the topography pf the street, but though formally offered by defendant, at a later stage in examination in chief of its witness, Charles Liston, to show that the condition of the street at the time of the accident was the same as at the time the photographs were taken, the court rejected them, for this purpose, and the defendant assigns this as error. The photographs do not show when they were taken, and without oral evidencie to supplement them do not furnish any evidence as to the condition of the street at the time of the accident. However, for all practical purposes they were before the jury and the defendant’s witnesses were freely examined and permitted to testify that the street at the time of the accident was in the same condition or in as good condition as was shown by the photographs; so that we can not see that defendant was in any wise injured in the formal rejection of the photographs for the purpose for which they were offered. They were in to show the topography of the street and defendant used them for the purpose for' which it formally offered them, besides, the plaintiff’s evidence showed that the condition of the street at the time of the accident was quite different from what it was at the time the photographs were taken.
2. Defendant complains that plaintiff was permitted to show that repairs were made at the scene of the accident after the accident ocurred, but this was necessary in order to show that the street as shown by the photographs put in evidence by the defendants was not in that condition on the
3. There is nothing in defendant’s contention that it was error to admit in evidence the ordinance of the City of Ben-wood, showing the duty of defendant to keep its portion of the street in repair, nor in refusing defendant’s evidence offered to show that Marshall street, was, pursuant to the Good Roads Law of 1917, taken over by the County Court of Marshall County as a Class “A” Road. The taking over of this street under the Good Roads Law did not relieve the City of Benwood or the defendant from their duty to keep the street in repair. City of McMechen v. Wheeling Traction Co., 90 W. Va. 24, 110 S. E. 469.
4. Nor do we find error in permitting plaintiff, in rebuttal, to show that no crushed stone or slag was placed between the rails of defendant’s track until after the accident, the defendant having offered evidence tending to show that for several days prior to the date of the accident it had at various times filled the depression with crushed stone or slag. As has often been said by this court, “Whether plaintiff shall be allowed to give further evidence after defendant’s evidence is closed is within the discretion of the trial court; and its exercise will rarely, if ever, be the ground of reversal by an appellate court.” Perdue v. Caswell Creek Coal & Coke Co., 40 W. Va. 372, 21 S. E. 870. The defendant was in no wise surprised by this testimony and we do not consider that the court abused its discretion, even if the testimony offered was not strictly rebuttal.
5. Defendant complains particularly of plaintiff’s instruction No. 2 which told the jury it might consider, in estimating plaintiff’s damages, his health and condition before the injury as compared with his present condition in consequence -of the injury, and also whether the injury is permanent in its nature, and how far the injury is calculated to disable him from engaging in those pursuits and
6. Defendant’s main contention is that the injury was caused not by the negligence of defendant, but by the run
But defendant insists that as a matter of law we must say 'that a sufficient time elapsed between the time the team scared and the time the wagon upset to enable the boy’s father to regain control of his team, and that if so, defendant is not liable. We can not so hold. True, it is shown that the wagon was drawn about ten yards during this period. But how long would it require a frightened team to go that distance? Probably, not more than two seconds. In the Hungerman case the horse was backing, and obviously it
Under these circumstances, we think the proximate cause of the injury was the defect in the street and not the runaway team. We, therefore, affirm the judgment.
Affirmed.