Abdulla v. Pittsburgh and Weirton Bus Co. ( 1975 )

Berry, Justice,

dissenting:

I dissent from the majority opinion because I am of the opinion that no actionable negligence has been shown on the part of the bus driver and that improper evidence was admitted over the objection of the defendant with regard to damages.

It is true that a common carrier owes the duty to its passengers to use the highest degree of care compatible with the practical operation of the vehicle, but that does not require the driver of the bus in the case at bar to anticipate that a driver of another car would violate the law by attempting to turn right from the left hand lane at an intersection in front of the bus. The driver of the other vehicle was negligent as a matter of law and such negligence was the proximate cause of the accident, and therefore the bus driver cannot be charged with negligence. Tochek v. Monongahela Transport Co., 109 W. Va. 20, 152 S.E. 776 (1930). In other words, it appears that this accident would have occurred even though the bus driver was exercising the highest degree of care and thus, the motion for a directed verdict by the defendant bus company should have been granted by the trial court.

The trial court also committed reversible error in allowing the jury, over the objection of the defendant, to consider in assessing damages charges by a hospital for services and expenses for an apparent injury not related in any manner to the injury received in the accident. Even if such charges were only a small part of the hospital bill, the principle is the same as if it were a large part. The trial court should have instructed the jury not to consider such charges or other injuries and the failure to do so constituted error. Bartley v. Western Maryland Ry. Co., 81 W. Va. 795, 95 S.E. 443 (1918).