Jacobson v. Hamill , 120 W. Va. 491 ( 1938 )

With regret I dissent from the majority opinion in this case. The record discloses that decedent, at the time struck, was walking across Harvey Street from the east to the west side in a southwesterly direction at an angle of about forty-five degrees. Walking at this angle, necessarily his back was partly toward southbound traffic, and his opportunity to see defendant's car coming from the north was greatly diminished. Thus his failure to see the oncoming car was the result of his own contributory negligence. There was, as Judge Kenna suggests in the majority opinion, sufficient evidence to justify the jury in finding that defendant was exceeding the statutory speed limit. The weather was misty and dark. Defendant testified, without contradiction, that he did not see the decedent until he was within two or three feet from the front of the car. That being so, there was not sufficient time to avert the collision. It follows that the last clear chance doctrine has no application, and this case is simply one of concurrent negligence in which there should be no recovery.Meyn v. Dulaney-Miller Auto Co., 118 W. Va. 545, 191 S.E. 558.

JUDGE FOX joins in this dissent.

KENNA, JUDGE, replying:

The testimony of the defendant, which is referred to in Judge Riley's dissenting memorandum, concerning the distance that decedent was in front of defendant's car at the time defendant first saw him is by no means as explicit, as I read it, as it appears to be to Judge Riley On defendant's direct examination (Record 126) the following questions and answers appear:

"Q. Mr. Hamill, how close was the front end of your car to Mr. Jacobson when you first saw Mr. Jacobson in front of it?

A. Just a few feet, right in front of the car.

Q. Suppose you give us the best estimate in feet that you can?

A. Well, I would say two or three feet."

The uncertainty of this estimate, to my mind, is apparent. A contradictory inference certainly could be drawn from the following testimony. The disinterested witness, Kemper B. Hylton, on direct examination, was asked the following questions and made the following answers:

"Q. Kemper, did you see any part of it?

A. Well, I guess I seen all of it.

Q. What was the first thing that attracted your attention?

A. The sliding of wheels on the street.

Q. The noise you mean?

A. Yes.

Q. Were you looking in that direction up to that time?

A. No, I had my back to them or maybe my side. I wasn't turned that way.

Q. When you heard the noise did you look around?

A. I did.

Q. And did you see the car before Mr. Jacobson was struck?

A. Yes, I did.

Q. About how close was it to him when you looked around and first saw the car?

A. Well, it looked to be around two or three feet of him." (Record, p. 65)

To my mind, the testimony of this witness that after his attention was drawn by the sliding of wheels and after that caused him to look around, Hamill's car was within two or three feet of Jacobson is certainly not in agreement with the rather reluctant statement of the defendant Hamill. The record shows other circumstances giving rise to variances of the estimated distance Hamill's car was from the decedent when he was first observed by defendant.