Yoder v. Charleston Transit Co.

Maxwell, Judge: The Charleston Transit Company prosecutes this writ of error to a judgment of the Circuit Court of Kanawha *62 County denying a writ of error to a judgment entered in the Common Pleas Court of that county September 5, 1936, against it and in favor of Ida Yoder in the sum of $5,000.00. The judgment was rendered in an action of trespass on the case which grew out of the plaintiff’s having been struck by an automobile driven by one C. L. Wells at about eleven-thirty on the night of December 4, 1935, in Virginia Street at Quarrier Walk about midway of the fifteen-hundred block in the City of Charleston. The assignments of error turn upon four major propositions: (1) That no vehicle owned and operated by the defendant has been in any manner by the testimony connected with the plaintiff’s injury; (2) that the testimony shows that the plaintiff’s own negligence was the proximate cause of her injury; (3) that in any event, the trial court erred in not setting aside the verdict and granting the defendant a new trial'upon its showing of after-discovered evidence; and (4) that it was error to refuse defendant’s instructions seven and thirteen. The plaintiff and C. L. Wells, whose automobile admittedly struck plaintiff inflicting her injuries, were the only persons present at the scene of the accident who testified. The plaintiff’s testimony, in addition to a full description of her injuries with which we are not here concerned because there is no assignment of error based on the amount of the verdict, was to the effect that on the evening in question she had been visiting a friend in West Charleston, and, leaving at about fifteen minutes till eleven o’clock, boarded a West Charleston street car to return to the home of her employers, Mr. and Mrs. A. A. Lilly, in Virginia Street, just opposite the scene of the accident. In Capitol Street, she transferred to an Outer Loop car at about eleven-fifteen; this car is routed north on Capitol Street to Washington, east on Washington Street to Duffy Street, south on Duffy Street to Virginia Street and west on Virginia Street, passing the plaintiff’s destination which was the stop at Quarrier Walk about midway the fifteen-hundred block, to Capitol *63 Street again. The plaintiff did not know the time of her arrival at the Quarrier Walk stop, but estimated that it was about eleven-thirty. She testified that she alighted from the street car at the front and on the right side and walked to the north curb, which was the opposite side of the street from the Lilly home. There she paused. Her testimony is confusing at this point, she having stated at one time that she waited five minutes and at another time that she waited five seconds. She then walked west approximately ten steps (or ten feet as she stated at another point in her testimony) and, after having looked both ways and at a time when the street car which had proceeded on its -course was about two hundred feet west of her, she started across the street. She further testified that at the time she looked, there were no vehicles approaching her from either east or west, and that there were no automobiles parked on either side of the street in the immediate vicinity; that when she had gotten into the street and was within about four feet of the north rail of the car track which extends along the middle of the street, a large, bulky vehicle running with dimmed lights loomed up and was within a very few feet of her when she first saw it; that it was running at a very fast rate of speed; that in order to escape being run down, she attempted to dodge from in front of the approaching vehicle and as she did so, she was struck by a vehicle proceeding in the same direction but to the south of the one that first bore down on her; that she knew nothing after the impact until she came to consciousness in the Wells car, and was taken by Wells to the Mountain State Hospital. The testimony of C. L. Wells was to the effect that after having conducted a prayer service at his church in Morris Street, he went with two friends to their homes in West Charleston, after which he drove up Virginia Street, stopping at the Studebaker garage to inquire about having his car serviced. At Ruffner Avenue, which is the first street intersection west of the point where the plaintiff was struck, Wells slowed down and for the *64 first time noticed a bus which stopped at Ruffner Avenue for the purpose either of taking on or letting off a passenger. He proceeded up Virginia Street with the bus behind him. Two or three hundred feet west of the point of the accident, a street car going west met Wells’ automobile and immediately thereafter, the bus which had been behind him pulled out to the left and started around him. Wells states he was running at the rate of between twenty-five and thirty miles an hour. At about the time the bus had gone possibly two-thirds of the way past him the plaintiff “just flashed up” out of the bus lights and before him. He immediately applied his brakes but could not stop in time to avoid striking the plaintiff with serious impact. He placed the plaintiff in his automobile and took her at once to the Mountain State Hospital were she remained for a little over four weeksi, most of the time in a very serious condition. After taking the plaintiff to the hospital, Wells went to police headquarters where he reported the accident and where he talked with R. G. Lilly. He and Lilly then went to the scene of the accident and inspected two skid marks which presumably evidenced the effort of Wells to stop his automobile. Of the witnesses for the defendant there were the two drivers of buses which covered the route past the scene of the accident the night in question. Both these men testified that they knew nothing of any occurrences such as those referred to in the plaintiff’s testimony having taken place that night. It appears from their examination that they were accustomed to driving their route at the rate of twenty to thirty miles an hour. The plaintiff had introduced an ordinance of the City of Charleston restricting the speed in the area of the accident to twenty-five miles an hour. The defendant also showed by the desk sergeant to whom Wells reported the accident at police headquarters that Wells had signed the report prepared by the sergeant in which the presence of a bus at the place of the accident was not mentioned and the accident was described by the statement that, “car traveling east on Virginia *65 Street struck the above named lady (plaintiff) who was crossing street.” Wells had stated on cross-examination that he had told the desk sergeant exactly how the accident had happened, the same as he had described it from the witness stand. The defendant also introduced its claim agent who testified that early on the morning immediately after the accident, he called at the home of Wells and was there told by him “all that happened was that woman stepped out from behind a street car so close in front of me I couldn’t prevent hitting her.” .Wells denies such statement. Under the first assignment of error, the initial question to be discussed is the assertion of the defendant that the record contains no proof that a bus owned and operated by it was present at the scene of the accident. The plaintiff did not describe the vehicle that first bore down on her as one of the defendant’s buses. She referred to it as a large bulk which “had those lights up like a bus”. In his examination in chief, Wells was asked if he had seen a bus owned and operated by the Charleston Transit Company. This question, of course, was leading, and objectionable also on the ground that it asked the witness for a conclusion. Nevertheless, it was not objected to and the witness replied in the affirmative. He stated that he had first seen the bus at Ruffner Avenue where it stopped and where he passed it. His testimony carries the bus to the scene of the accident and shows it to have been the same that went around his car just below the place where the impact occurred and traveling at the rate of forty-five to fifty miles an hour. On his re-cross examination, Wells stated that the bus was “kind of a dark yellow”. He further stated in response to an un-objected-to leading question that it was the same color that “they” were using now. The testimony of the defendant showed it did not operate any yellow buses, and that, according to the regular schedules of the company, none of its buses would have passed the place of the accident, if on time and not ahead of time, at thirty-two minutes past eleven, which was approximately the time of the ac *66 cident. Of course, the testimony of the two bus drivers to the effect that no incident like that here involved had occurred on their route that evening, tended strongly to contradict the testimony of Wells. Under the first assignment it is also contended by the defendant that no liability can rest on it because of the fact that there is no proof, admitting that defendant’s bus was at the scene of the accident, that it struck or injured the plaintiff. While this contention is advanced, it is not stressed in the brief nor was it emphasized on oral argument. We think that there can be no question that, regardless of the source of the physical force which causes an injury, responsibility for it rests on him whose negligent act was its proximate cause. 3-4 Huddy on Automobile Law (9th Ed.), section 21; 2 Berry on Automobiles (7th Ed.), section 2.333; Judd v. Rudolph, 207 Iowa 113, 222 N. W. 416, 62 A. L. R. 1174; Paup v. American Telephone & Telegraph Co., 124 Neb. 550, 247 N. W. 411; 2 Blashfield’s Cyclopedia of Automobile Law, pp. 1201-1203; Boggs v. Jewell Tea Co., 266 Pa. 428, 109 A. 666. The theory of the plaintiff is that the negligent act of the defendant in running its bus at an excessive and dangerous rate of speed and in not keeping a sufficient lookout placed the plaintiff in imminent peril, and that in her effort to escape from that peril, caused by the negligence of the defendant, she was injured, without fault on her part, by another vehicle. On the basis just stated the plaintiff would be entitled to recover. But is it the true basis? Was she without fault? Or, was she negligent, and was her negligence a proximate cause of her injury? According to her own testimony, the street car had proceeded about two hundred feet from her before she started across the street, and she then looked and saw no vehicle approaching. Within that distance there was no object to obstruct her vision or distract her attention. If her view of vehicles approaching from the direction in which the street car was proceeding was at first cut off by the street car, such view necessarily became unobstructed by the car at a *67 distance of at least two hundred feet from the point where the plaintiff was standing. According to the testimony of the witness Wells and of the plaintiff, the bus was lighted, including dim headlights, yet she deliberately walked into the street in the path of the approaching bus, if it must be accepted under the jury verdict that there was a bus there. Accepting the testimony of the plaintiff and Wells as to the presence of a lighted bus, its lights were necessarily readily discernible to any person of normal vision. Under the circumstances in evidence, it does not suffice for the plaintiff to say she did not see the bus, or that it came into view and bore down on her with overwhelming speed after she started across the street. It is the duty of pedestrians to use their sense of sight, not casually, but carefully. And, in attempting to cross streets, pedestrians may not deliberately enter into danger which proper use of their sight would disclose to them to be impending. “To meet the requirements of the law as to looking, one must look for the purpose of finding out, and the circumstances may be such that courts will 'not listen to the plea of a pedestrian, that, although he looked, he did not see what was immediately in front of him and in plain view, or what he could have seen by a reasonable use of his senses in time to avoid injury.” 2 Blashfield’s Cyclopedia of Automobile Law, section 13. “The testimony of a witness that he looked and did not see an object which he must have seen if he had looked is unworthy of consideration.” Sullivan v. Smith, 123 Md. 546, 91 A. 456. Plaintiff’s excuses and attempted justification for getting in the way of the bus must yield to the uncon-troverted facts just recited. Under such facts, the question of her negligence becomes one of law to be determined by the court. The case of Mertens v. Lake Shore Yellow Cab & Transfer Co., 195 Wis. 646, 218 N. W. 85, involves a situation where a pedestrian was struck by a motor vehicle as he attempted to cross a street, his vision in the direction from which the vehicle approached being unobstructed for a distance of two hundred fifty feet. In that case, the plaintiff testified that he looked in the *68 direction from which the vehicle approached and saw no automobile coming. He was struck about twelve feet from the point where he said he made the observation. The court stated that “such a situation does not present a jury question. Under such circumstances, a person is presumed not to have looked, or to have heedlessly submitted himself to the danger. He is not permitted to say that he looked, when, if he had looked, he must have seen that which was in plain sight.” “If a pedestrian looks for approaching automobiles before attempting to cross a street or highway, he is presumed in law to have seen what he should have seen had his observance been careful and attentive. He cannot justify himself by saying that he looked and did not see the approaching car that injured him, when, if he had looked, he must have seen the car. Unless there is some circumstance or condition to excuse him, his failure to see the car constitutes negligence as a matter of law.” 5-6 Huddy on Automobile Law, section 90. Consult: Carnevale v. McCrady-Rodgers Co., 318 Pa. 369, 178 A. 472; Molda v. Clark, 236 Mich. 277, 210 N. W. 203; Silverstein v. Adams, 134 Wash. 430, 235 P. 784; Martin Baking Co. v. Tompkinson, 27 Ohio App. 355, 161 N. E. 288. Accepting the plaintiff’s testimony that she looked east and west before starting across the street, and at that instant she saw no vehicles approaching from the east or west, but that beyond the distance of two hundred feet on the west her view was obstructed by the street car moving westward, we are of opinion that her act merely of looking when she says she looked does not absolve her from blame nor relieve her of further duty respecting her own care and safety, nor warrant her in heedlessly pursuing her course across a much traveled street without further apprising herself of the approach of motor vehicles. Plaintiff’s conduct, under the circumstances, was not such as would be expected of a reasonably prudent person in the exercise of care for her own safety. In such instance, the trial court should have directed a verdict for the defendant. McLeod v. Laundry, 106 W. Va. 361, *69 145 S. E. 756; Craft v. Coal Co., 114 W. Va. 295,171 S. E. 886; Wood v. Shrewsbury, 117 W. Va. 569, 186 S. E. 294. This conclusion eliminates necessity for consideration of other assignments of error. For reasons stated and oh principles applied, the judgment of the trial court is reversed, the verdict of the jury set aside, and the case remanded. Reversed and Remanded.