Smith v. Gould

This suit is the outcome of an unfortunate automobile accident which occurred on the afternoon of March 18, 1929, on the main state highway between Buckhannon and Weston. Plaintiff's decedent, Rebecca Smith, traveling toward Buckhannon on a regular passenger bus had alighted from the bus on the right-hand (south) side of the road, and after having walked back along-side of the bus on the edge of the road, she had started across the road in the rear of the bus, when she was struck by defendant's car which he was driving toward Weston, whereby she was injured so severely that she died enroute to the hospital. The trial in the circuit court resulted in a verdict and judgment for plaintiff for $4,000.00. Defendant prosecutes this writ of error.

The highway at the point of the accident was straight for several hundred yards and had a sixteen foot concrete surface with a berm on each side. Houses flanked the road at irregular intervals, making the section a suburban one. Mrs. Smith's evident intention was to cross the road for the purpose of going to her home which was on a side road which intersected the highway at that point. The evidence is conflicting as to whether the bus stopped exactly opposite this intersecting road or had proceeded by it for a few feet in the direction of Buckhannon. There is also a conflict as to whether Mrs. Smith walked across the highway directly behind the bus or whether she walked back some distance from the rear of the bus before crossing. The jury was warranted in believing from the evidence that she pursued the latter course. The evidence preponderates that she had almost reached the other side of the road when she was struck by defendant's car.

Several men, proceeding toward Buckhannon in an automobile following the bus at a short distance, saw the accident and testified at the trial. Their evidence is uncontradicted that Mrs. Smith did not look to her right, the direction from which the defendant was approaching. The bus having immediately resumed its journey toward Buckhannon, there was nothing to have obstructed Mrs. Smith's view of defendant's approaching automobile had she looked in that direction. Two of these witnesses say that the defendant's automobile was from 40 to 50 feet away from Mrs. Smith when she reached a point approximately in the middle of the road. The testimony as to these two matters, first that the defendant's automobile was 40 to 50 feet from Mrs. Smith when she stepped out into the highway, and, second, that defendant's automobile could have been stopped in about its length, is preponderating, therefore, they will be dealt with as proven facts.

Defendant himself testifies that when he reached a point about six hundred feet from the bus, he noticed someone alighting from the bus, and that it was so far away that he thought the person was a school girl. He says that he kept watching to see what she was going to do, but as he drew near the bus his attention was attracted to an oncoming car and then he did not again see her until his wife who was riding with him screamed, and then it was too late to avoid striking the deceased. How defendant could have failed to see Mrs. Smith if, as he says, he was watching an oncoming car, it is difficult to see, for she would be almost directly in his line of vision. He further states that he was driving at the rate of about 20 miles an hour, and in this he is corroborated by a preponderance of the evidence; that he did not slacken the speed of his automobile in the least when he saw the parked bus and the passenger alighting or as he approached the point where the passenger had alighted; and that he sounded no signal until it was too late. A truck driver who was following closely behind defendant's car says that he saw the parked bus and the passenger alight and, after walking back on the berm for 40 or 50 feet, start across the highway, and furthermore, that he stopped his truck before the accident occurred. The testimony of this witness seems to establish the fact that had defendant been looking he could have seen Mrs. Smith in ample time to avoid the accident.

Defendant was inexcusably negligent in the manner in which he approached the point where the accident occurred. He saw the bus; he saw that the bus had stopped and that someone had alighted. He says he knew there was not much likelihood that the passenger who had been discharged from the bus would leave the road from the south side because there was a ditch and an embankment there. He lived in that general community, and knew that people lived along the intersecting road on the opposite side of the highway. Yet he did not keep a close observation of the road immediately beyond the rear of the bus. The jury was warranted in believing from the evidence (we think a clear preponderance) that the bus started forward after the deceased had alighted therefrom and proceeded on its way as she was walking along the berm in the opposite direction. Defendant further admits that he neither slackened the speed of his car nor sounded an alarm. As a consequence of all of which he was too close upon Mrs. Smith to avoid hitting her when her presence in the traveled portion of the highway became known to him through the information which he received from his wife. He further admits that he probably would not have seen the deceased immediately before striking her had not his wife given alarm.

It may be accepted as settled law that the driver of a motor vehicle is not ordinarily liable for injury to a person who suddenly steps into the path of such moving vehicle from the shelter of a standing vehicle or some other stationary object.Brien v. Gordon, (Pa.) 34 A.L.R. 1511; Jean v. Nester, (Mass.) 158 N.E. 893; Pierce v. Horsman, (Ky.) 256 S.W. 397. Defendant says that such was the manner in which the accident at bar occurred, and he contends that under the principle of law stated there is no liability upon him by reason of the accident. There being ample evidence to support the plaintiff's theory that the deceased did not start across the road immediately in the rear of the bus but that she proceeded along the edge of the road for 25 or 30 feet before starting across, we must, in the light of the verdict for the plaintiff, consider the case in that light. But, even so, in failing to look to her right before she stepped out into the line of traffic she failed to exercise due care for her own safety. Does her negligence preclude her administrator from recovery?

True, as a general rule, contributory negligence on the part of an injured person precludes relief in damages; and concurring negligence on the part of a plaintiff and defendant at the instant of a collision ordinarily bars recovery. The rule as to concurring negligence is particularly applicable in cases where there has been something to put the injured person on guard after he has placed himself in a position of peril, as in the case of Waller v. Ry. Co., 108 W. Va. 576, which is illustrative of the legal point though not involving an injury inflicted by an automobile. There the automobile in which the deceased was riding had become stalled on a railroad crossing. He and his companions did not even then look for an approaching train though there was ample time to have seen it and to have gotten out of the way though the automobile could not then be moved. See also Keller v. Railway Co., 109 W. Va. 522,156 S.E. 50. Concurring negligence is of course but a phase of contributory negligence.

It is not to be understood, however, that the salutary, sensible and practical doctrine of contributory negligence, stands as adamant, immovable, unalterable and relentless. It is not a rule of iron. It carries with it an exception or qualification which is as well grounded in American and English jurisprudence as is the rule itself. In fact the qualification not only proves the rule but vitalizes and humanizes it. This is known in the law as the doctrine of last clear chance. It has many variations, and much confusion has been evidenced in the extended and manifold discussions of the same. The base of the rule is this: A plaintiff who has negligently placed himself or his property in a situation of imminent peril and is either unconscious of the situation, or unable to avoid the danger, or both, may nevertheless recover damages of the defendant who negligently inflicts injury, if the defendant could have avoided the injury after discovering the plaintiff's peril. This proposition is generally recognized in American and English cases. It is in the refinements and extensions of the basic principle wherein lie difficulty and confusion.

Should the principle be extended to a case wherein the situation of the plaintiff is as stated in the base rule,supra, and the defendant did not actually know of the plaintiff's peril in time to avoid the injury, but, in the exercise of reasonable care under the circumstances, would have known of the plaintiff's perilous situation in time to have avoided the injury? Such is the case at bar, wherein the plaintiff's decedent, negligent in attempting to cross the highway without looking to her right, was evidently unconscious of her imminent peril, and the defendant, though not actually seeing her in the act of crossing the street in time to avoid the collision, could and should have seen her in time to have avoided running her down if he had been in the exercise of reasonable care when she first came into the line of his vision as she started across the highway.

The courts of many of our states answer this query in an emphatic negative. It is said that actual knowledge by the defendant of the plaintiff's peril is the sine qua non of the doctrine; that the imputed knowledge idea is out of place; that the last clear chance doctrine is founded on the basis of actual knowledge by the defendant of the plaintiff's peril and that a defendant cannot fairly be said to have had a last clear chance to avoid inflicting injury if he did not actually see the peril in time to avoid the injury; that where neither party sees the other there is a situation of concurring negligence; that each owes a duty of lookout; hence no sound basis for recovery by the injured party where the defendant did not actually know the situation. However, the rationale for the extension of the doctrine to a situation wherein the negligent defendant could and should have seen the plaintiff's peril and should have avoided inflicting injury on him is not without its vigorous champions. 45 Corpus Juris, page 990. Such situation is accentuated where there is owing by the defendant to the plaintiff a duty to keep a reasonable lookout commensurate with the instrumentality which he is operating, the locality and attendant circumstances considered. In railroad cases, for example, the duty imposed upon trainmen of maintaining a reasonable lookout for travelers at highway crossings is more exacting than the duty of lookout for trespassers on the railroad right of way. In street railway cases there is a more exacting obligation of lookout at street intersections than between intersections. In the driving of automobiles upon public thoroughfares there is a duty at all times imposed upon their operators to maintain a lookout for persons and property on the highway and to use reasonable care to avoid inflicting injury on such persons or property. Whether, in accordance with such general duty, it should be said that an automobilist should at all times be subject to an extension of the last clear chance doctrine to such a degree as to make him responsible for injury to a negligent person if the automobilist, though not actually seeing the person or property in time to avoid injury, but in the exercise of reasonable care could and should have seen such person or property, is not necessary for us now to discuss, because that is not the immediate situation under consideration. Here we have superadded circumstances which are of outstanding nature and controlling importance, namely, the admission by the defendant that he saw a girl or woman alight from the standing bus; that he knew that it was unlikely that the passenger would leave the highway to the south; that he knew that a number of persons resided on the opposite side of the highway from where the girl or woman left the bus. These facts and circumstances should have put the defendant on guard; his senses should have been aroused; he should have been on the alert. The reasonable care and precaution, the exercise of which devolved upon him under such circumstances, was quite a different thing from the reasonable care of lookout which devolves upon an automobilist upon open country road where nothing has come to his attention to indicate a situation pregnant with possibilities of disaster.

Apropos of the idea that where a duty rests upon a defendant to keep a lookout for a person in peril, the imputed knowledge theory prevails, we find this succinct statement in the case ofDent v. Bellows Falls Street Ry. Co., (Vt.) 116 A. 83; "The extension of the doctrine (last clear chance) to perils not actually discovered is fully justified when the situation is such that the defendant owes the duty of looking out for danger, as in the case of persons crossing a railroad at a highway crossing at grade." Among the jurisdictions upholding the imputed knowledge doctrine are: Kentucky: Ross v. TaxicabCo., 261 S.W. 590, and Weidner v. Otter, 188 S.W. 335, in which latter case appears this statement: "It is, too, a familiar rule in the law of negligence that the care to be exercised must correspond with the capacity to injure and accordingly the automobilist is under a much higher degree of care to look out for the pedestrian than the pedestrian is to look out for the automobilist. The pedestrian cannot merely by the manner in which he uses the street harm the automobilist, but the automobilist may by his manner of using the street kill the pedestrian; and so, generally speaking, the pedestrian is only required to look after his own safety and not the safety of others, while the automobilist must look out for the safety of the pedestrian rather than his own." See also: Louisville v. Cornett's Admr., 35 S.W.2d 10. Maryland: Consol. R. Co. v. Armstrong, 48 A. 1047. Michigan:Gibbard v. Cursan, 196 N.W. 398. Missouri: Burke v.Papas, 293 S.W. 142. Connecticut: Nehring v. Conn. Co.,84 A. 301. Kansas: Muir v. Fleming, 227 P. 536. North Carolina:West Construction Co. v. Atlantic Coast Line Ry. Co.,116 S.E. 3. Washington. In Chase v. Taxicab Co., 139 P. 499, it appears that plaintiff was walking along the street and had observed the defendant in a taxicab some distance away but paid no further attention to the approaching car. The defendant driver had likewise seen plaintiff but because his windshield was wet he did not see him again until almost at the point of the impact. The court in upholding a verdict for the plaintiff, said: "The verdict may be sustained upon another ground. If the respondent (plaintiff) was proceeding in a way that would have indicated to a reasonably prudent man that he was unconscious of the approach of the taxicab and the driver saw him, or in the exercise of reasonable care ought to have seen him, and observed his state of mind and discovered his peril in time to avoid striking him, and failed in this duty, he was guilty of negligence, and his negligence was the proximate cause of the injury; while the negligence of the respondent, if any, was a remote cause." District of Columbia: Standard Oil Company v.McDaniel, 280 F. 993. The Supreme Court of the United States says: "That doctrine, (last clear chance) rightly applied in the Chunn case, amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff's peril or unaware of it only through carelessness, had in fact a later opportunity than the plaintiff to avert an accident. Grand Trunk Ry. v. Ives,144 U.S. 408, 428; Inland and Seaboard Coasting Co. v. Tolson,139 U.S. 561, 558." Kansas City Sou. Ry. v. Ellzey, 275 U. 587 So. 236. The Virginia reports contain many cases enunciating this doctrine, a few of the more important of which are as follows: Southern Railroad Co. v. Bailey, 67 S.E. 365; RoanokeCo. v. Carroll, 72 S.E. 125; Green v. Ruffin, 125 S.E. 742; C. O. v. Corbin's Admr., 67 S.E. 179;McGowan v. Tayman, 132 S.E. 316; Barnes v. Ashworth, 153 S.E. 711. The jurisdiction from which the foregoing cases are taken all recognize imputed knowledge as an element of the last clear chance doctrine and the cases are here cited on that proposition alone.

Reviewing the West Virginia decisions on the doctrine of last clear chance, we find that the imputed knowledge extension is recognized in many of our cases. Among those clearly recognizing this extension are: Waller v. Railway Co., 108 W. Va. 577;Mollohan v. Railroad Co., 108 W. Va. 490; Attelli v.Laird, 106 W. Va. 717; McLeod v. Laundry Co., 106 W. Va. 361;Buchannan v. Railway Co., 102 W. Va. 426; Freeman v.Traction Co., 98 W. Va. 311; Ferguson v. Ohio Valley ElectricRailway Co., 82 W. Va. 323; Bond v. B. O. Railroad Co.,82 W. Va. 557; Schoonover v. Railroad, Co., 69 W. Va. 560;Riedel v. Traction Co., 69 W. Va. 18. A case inferentially announcing the imputed knowledge extension is: Riggs v. PublicService Company, 105 W. Va. 362. An interesting discussion of the last clear chance doctrine appears in W. Va. Law Quarterly for June, 1931.

In Attelli v. Laird, supra, the last clear chance doctrine was applied in a situation somewhat similar on its facts to the case at bar. Plaintiff's decedent after alighting from a truck carrying workmen which had parked on a much traveled highway, attempted to cross the road without looking for approaching traffic. Defendant's driver could have seen the parked truck 300 feet away, and, the plaintiff's decedent when he stepped into the highway 175 feet away, but he came on without slackening his speed or sounding a warning although he had passed a similar truck not far down the road with workmen getting aboard it. Twenty-five feet from plaintiff's decedent the driver discovered him and attempted in vain to avoid hitting him. Under this evidence it was held to be a jury question whether defendant's driver had the last clear chance to avoid the accident.

In McLeod v. Laundry Co., supra, there was a situation where, by reason of the plaintiff's decedent having started suddenly across the street in front of defendant's delivery truck the driver thereof had no opportunity to avoid striking her. She attempted to run across the street in a driving rainstorm with an umbrella pulled down over her face and right shoulder. Defendant's truck was but ten feet away and to her right when she stepped off the curb; hence all efforts of the driver to stop the vehicle before injuring her were without avail. It was held that the last clear chance doctrine did not apply. The driver not only did not see her in time to avoid the accident but in the exercise of reasonable care he could not have seen her.

The majority of the Court does not share the view expressed by JUDGE HATCHER in the latter part of the opinion inKeller v. Ry. Co., 109 W. Va. 522, 156 S.E. 50, that the last clear chance doctrine should not be applied unless the party inflicting injury on another has actual knowledge of such other's peril. We do not think the doctrine should be thus narrowed particularly in cases where the circumstances should have put the defendant on guard, as at bar.

If the defendant had seen the deceased when she started across the highway 40 to 50 feet in front of him (her unconsciousness of her peril being evident from her demeanor), and he had taken no precaution to avoid injuring her (it appearing from the evidence that at the speed at which it was moving his automobile could have been stopped in about its length), clearly he would have been liable in damages under the unquestioned last clear chance doctrine (above referred to as the base rule). If he did not see her at the distance indicated, he was none the less negligent, because, considering the dangerous character of the instrumentality which he was employing, the fact of his having seen the plaintiff alight from the bus, and his knowledge of the locality, it was his reasonable duty to have seen her when she was attempting to cross within the direct line of his vision. One may not negligently and carelessly use on a public road a vehicle which, because of its weight, power and speed, is capable of inflicting grievous injury on other persons, and then, when an accident has happened, invariably escape responsibility because, forsooth, the victim of the accident was also negligent, and defendant did not actually see plaintiff's peril in time to avoid inflicting the injury. The defendant in such case may escape liability or he may not, depending on the particular circumstances of the case. If, as in the case at bar, the circumstances are such as should have put the defendant on guard, we perceive no basis in sound reason why he should not be held liable.

It is stated in effect in many cases that although knowledge of the plaintiff's peril may be imputed to the defendant where the latter owed a duty of reasonable lookout, such principle cannot be applied where the negligence of the plaintiff concurs with that of the defendant at the instant of the injury. Typical of these cases is Dyer v. Power Light Co., (Me.)115 A. 194. On principle why should this be so in all cases? Conceding that in reason it is applicable to many cases, must it be applied in all? If a pedestrian negligently continues in a position of peril, under circumstances which clearly indicate his unconsciousness of his peril and that he is not likely to extricate himself therefrom, and a motorist, in the exercise of reasonable care, has full opportunity to see the plaintiff and comprehend his peril, and has time to avoid injuring him in the exercise of further reasonable care, why should such defendant not be held responsible for the results of his palpable failure to discharge his reasonable duty to a fellow being? If, in such cases, where the plaintiff's negligence continues to the instant of the accident, the defendant is liable if he actually saw the plaintiff's peril in time to avoid the accident (such seems to be the trend of the decisions, 45 L.R.A. (N.S.) 896, note; Mosso v. Stanton Co. (Wash.) 134 P. 941, why should such defendant be any the less liable because he "closed his eyes" to the situation — failed to see that which he easily could have seen and ought to have seen? But, however this may be, there seems to be but one rational answer where the circumstances are such as to have put the defendant specially on guard, as in this case. The Virginia court has expressed itself unequivocally on this subject. InBarnes v. Ashworth, (Va.) 153 S.E. 711, decided in 1930, in an exhaustive discussion, it is said, in effect, that the doctrine of last clear chance is applicable if it is established that, "had the defendant kept such a lookout, as he was required by law to keep, he would or ought to have been aware from facts and circumstances which would have been brought home to his knowledge that the plaintiff was unconscious of his peril, and would take no steps to secure his own safety, or was in a situation from which the exercise of ordinary care on his part would not thereafter extricate him." In the prior case ofMcGowan v. Tayman, 132 S.E. 316, the Virginia Court declared: "The doctrine of last clear chance has no application to the defendant except where the plaintiff is guilty of negligence; but such negligence, even though it continued up to the moment of the injury, does not relieve the defendant of liability if he knew, or ought to have known, the peril in which the plaintiff had negligently placed himself, and had a clear chance, notwithstanding such negligence, to save him from injury. His failure to avail himself of such last clear chance is negligence, which becomes the proximate cause of the plaintiff's injury. Shearman Red. On Neg. (5th Ed.) sec 99;Wilson's Admr. v. Portland Ry., 94 S.E. 347, 122 Va. 262; Va.Ry. Power Co. v. Smith, 105 S.E. 532, 129 Va. 269."

In 2 Thompson on Negligence (2d Ed.) sec. 1476, the learned author in expressing his condemnation of the doctrine that a street railway company will not be liable in damages for injuring a person who was guilty of negligence in exposing himself to danger, unless the operatives of the street car actually discovered the peril in time, by the exercise of ordinary care, to avert injury, uses this language: " It ignores the obvious conclusion of sense and justice, that the fact that they, and not the driver or the foot passenger, are propelling the instrument of danger, puts upon them the duty of exercising constant care and watchfulness to avert death or injury to the other members of the public who use the highway." One is impressed that the learned author's criticism of the doctrine he is discussing with reference to street railways applies with great force to automobilists.

We think it is a sound principle that 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 a pedestrian (though such pedestrian 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 precludes recovery by a plaintiff whose negligence has concurred with the defendant's.

The principal objection to plaintiff's instructions is that certain of them, though binding in nature, ignored the defense of contributory negligence. In the light of the fact that under the rules of law, above set forth, properly applicable to the facts of this case, the contributory negligence of the deceased does not preclude recovery in this action, the omission of reference to that defense in plaintiff's instruction does not constitute prejudical error.

As to instructions tendered by the defendant and refused by the court, we find that they were either covered in substance by instructions which were given on behalf of the defendant or else they embodied propositions which were inconsistent with the doctrine of last clear chance.

The remaining point of error goes to the action of the trial court in overruling a motion of the defendant to declare a mistrial on account of the fact that on cross-examination of J. L. Jennings, a justice of the peace of Upshur County, who was one of defendant's witnesses, there was at least inferentially disclosed to the jury the fact that the defendant was insured against loss on account of the accident upon which the suit is predicated. The situation arose in this manner: On either the evening of the day of the accident, and within a very few hours thereafter, or on the evening of the succeeding day (there is confusion in the record as to the exact time) an anomalous sort of hearing was held before the said magistrate. The record does not disclose at whose instance the hearing was held. Witnesses to the accident were in attendance at the migistrate's office and were examined under oath by both the magistrate and counsel representing the insurance company. No one representing the husband or the deceased woman was present at the magistrate's hearing. At the trial the magistrate was put on the witness stand by the defendant to explain this most unusual procedure. On direct examination the magistrate testified: "Well, there were parties * * * and I am not sure about who those parties were * * * that thought there should be an inquest held, and I didn't see the necessity of it myself * * * but, finally decided that I would hold a preliminary examination and ascertain whether or not it would be necessary * * * that is, to hold an inquest. I got the names of the parties who were supposed to have been nearest this accident at the time * * * and they were examined." He further testified that the evidence was taken down in shorthand. On cross-examination he was asked this question: "In other words, the testimony wasn't taken down for the purpose of this preliminary hearing at all?" To which inquiry he answered: "No, my understanding was that the insurance company wanted it taken down." Objection was immediately interposed by the defendant, whereupon the court said to the jury: "Yes, gentlemen, that will have to be stricken out, and the jury is instructed to pay no attention whatever to this statement of the witness, and we will not discuss it further at this time, gentlemen." The information which the magistrate thus injected into the record with reference to the insurance company was clearly voluntary on his part. The question was not so framed as to elicit that sort of a reply, nor could counsel who was cross-examining the magistrate have anticipated that any such reply would be made.

In the trial of personal liability actions the fact that the defendant is protected by insurance should not be injected into the evidence. Christie v. Mitchell, 93 W. Va. 200; Moorefield v. Lewis, 96 W. Va. 112. But the fact of the injection of such improper testimony is not invariably a cause for reversal. InAmbrose v. Young, 100 W. Va. 452, we held that a case should not be reversed on that ground "where it clearly appears that counsel for the plaintiff did not solicit such testimony and could not have anticipated the objectionable answer of the witness, and where the court instructed the jury to disregard it." That is the exact situation at bar. And again, a case will not be reversed on that ground, "if the verdict for the plaintiff is supported by a plain preponderance of the evidence." Jefferies v. Ashcraft, 104 W. Va. 636. That, too, is the situation at bar.

We affirm the judgment of the trial court.

Affirmed.