Yoder v. Charleston Transit Co. , 119 W. Va. 61 ( 1937 )

I do not think that the proof in this case discloses plainly that the plaintiff was guilty of contributory negligence. In the state of this record, that question must be determined upon the proof of the plaintiff and very largely upon her own testimony.

The plaintiff got off the west bound street car at Quarrier Walk and prudently went to the sidewalk on the right or north, which was on the opposite side of the street from her destination. Obviously, she did this in order to avoid the danger of standing in the street until the street car had passed and then crossing behind it.

The plaintiff testified that, having gotten to the north curb, she waited an appreciable length of time. At one point she says she waited for about five minutes. The circumstances render this statement plainly incorrect. At another point she says she waited about five seconds. Probably the fact lies between these two estimates. She then walked west in the same direction that the street car was going. At one point she said she walked ten steps; at another, ten feet. Again it is obvious that the plaintiff was making estimates under circumstances rendering exact statements of time and distance impossible. Her testimony shows that she is a person who cannot make accurate estimates of time and distance. This fact, coupled with the nervousness upon the witness stand that its realization on plaintiff's part would induce, I think would warrant a jury in applying such estimates as she made and fitting them into the other circumstances with some degree of liberality.

Having reached the north sidewalk and having waited, according to plaintiff's testimony, she looked both ways before going into the street. In the meantime, the street car had proceeded west a distance of approximately 200 feet.

The principal opinion refers to plaintiff as having testified that she looked to the west, the direction in which the street car was going, as she started across the street. I do not so read her testimony. I think she stated that she looked both ways before she started to cross the street, but I do not think that she undertook to state at exactly what moment she looked either way. Here, I think are the points in her testimony which govern this question:

Direct Examination, Record, p. 47, et seq.

"A. I got off the street car and I walked to the sidewalk and I looked down the street as I was walking, and I walked down a piece to be sure that there was no traffic, I looked both ways and I started across, got about four or five steps across and all at once I saw the flare of the lights and the bulk of something coming at me, and when I saw this it scared me and I started to run, and I didn't see anything — no other car — so when I started to run that was all I knew. I was evidently knocked unconscious.

Q. Now the jury may not have heard it. I don't want to repeat, but I would like to get this in the record. When you got off the street car you say you got off of the right side on the front end?

A. Yes, sir.

Q. Just a few feet above Quarrier Walk?

A. Yes, sir.

Q. And where did you go then?

A. I walked to the sidewalk and walked down —

Q. Which sidewalk? Was that the one —

A. The north.

Q. That was on the same side you got off on?

A. Yes, sir.

Q. And the opposite side from where the Lillys live?

A. Yes, sir.

Q. When you got to the sidewalk what did you do then?

A. I walked down the street a piece —

Q. About how far did you walk?

A. Well, about ten steps, I guess.

Q. Do you know how far you walked?

A. Well, I will say about ten feet.

Q. About ten feet. Where would that be with reference to where Quarrier Walk was?

A. Yes.

Q. About there?

A. About Quarrier Walk.

Q. The street car had gone on, as I understand, that you got off of?

A. Yes, sir.

Q. Then after you got over on the sidewalk, on the right side as you face west, that is, opposite to where you were working, you walked down along the sidewalk the way the street car was going about ten feet?

A. Yes, sir.

Q. As you walked down there did you notice the street car and whether there was any traffic coming up meeting the street car?

A. I looked, but I didn't see any.

Q. Where did you look?

A. I looked down the street.

Q. What time did you look down that way, or how long?

A. Well, about five minutes.

Q. As you walked down west along the sidewalk there before you started across to the house, what were you doing then?

A. I was waiting for the street car to get on so that I could see if there was any traffic in my way.

Q. Well, were you looking to see if there was any traffic down there?

A. Yes, sir.

Q. What did you see down west? That is, the way you were walking and the way the street car was going, what traffic did you see?

A. I didn't see anything.

Q. Where was the street car when you last saw it, or when you started across to home?

A. It was down about the third house, about two hundred feet.

Q. About the third house west?

A. Yes, sir, west.

Q. About two hundred feet. Do you know where that would be with reference to where Houston G. Young lives?

A. Yes, it is right in there close to him.

Q. When you started across did you look any other way besides out toward where the street car was down next to Houston Young's?

A. I looked east.

Q. Which direction was that?

A. It was to my left, up the street.

Q. Up Virginia Street. Now, was there any traffic in that direction?

A. No.

Q. Were there any parked cars along there?

A. No.

Q. How far had you gotten when you first ascertained that this bus was —

Mr. Hundley (Interrupting): Wait a minute. She never said there was any bus there. She said it was a light. Now we don't want him to lead her on that.

Gen. Lilly: All right, if that is leading.

Q. Now you state that after having looked west there as you detail and seeing no traffic except the street car down at Mr. Young's you started across home. How far did you get before anything occurred?

A. About four steps."

Cross Examination, Record, p. 63, et seq.

"Q. Did you look before you went over?

A. Yes, sir.

Q. Which way did you look?

A. I looked both ways.

Q. How far down, that is, down this way, could you see on Virginia Street?

A. About two hundred feet.

Q. About how many houses?

A. Three.

Q. And where was the street car at that time?

A. It was just below the third house.

Q. And did you see any motor vehicles on the street?

A. Not until I started across.

Q. No, I mean before you started.

A. No.

Q. Did you look before you stepped out in the street?

A. Yes.

Q. Did I understand you to say that you looked toward the Capitol too?

A. Yes.

Q. How far could you see up that way?

A. Well, that street is very straight up through there. I don't know just how far, but it is a long ways.

Q. The fact of the matter is, Miss Yoder, it is straight both sides of Quarrier Walk for a considerable distance, isn't it?

A. Yes.

Q. When you entered the street how far did you go, did you say, until you looked up?

A. About four steps."

On the basis of this testimony, I think that it is entirely reasonable to conclude from the plaintiff's direct statement and from the plain inferences to be drawn from her testimony, that after she reached the north curb, she walked west and while doing so, of course, looked in that direction. She observed the street car to be approximately 200 feet away with no other vehicle in sight. As she stepped into the street she turned to look behind her toward the east. This was quite natural because it was from the east that the traffic would be coming on the side of the street she first entered. At this moment, the Wells car with the bus behind it passed the street car only a little more than 200 feet, or a little less than that distance, away. We must remember that we are necessarily dealing with estimates of time and distance.

Immediately after the bus passed the street car, it undertook to pass the Wells car going in the same direction it was going. Wells testified that when the bus passed his car, it was going between forty-five and fifty miles an hour. At fifty miles an hour, it would be moving seventy-three feet a second, or at a speed that would take it from the point where it passed the street car to the point where the plaintiff was injured in about three seconds. Stating this conclusion in another way, about three seconds was all the time that necessarily elapsed from the time that plaintiff looked toward the west and saw no traffic other than the street car, until the plaintiff was injured. I think that it is perfectly consistent with the plaintiff's testimony to infer that during that time she was looking east in order to assure herself that as she stepped into the street there was no approaching traffic on the near side of the street. She had looked west before entering the street, and before reaching the middle of the street and entering that part of it where she was expecting east bound traffic, she looked west again. At that moment, the bus was almost upon her, and on the left side of the street.

I freely confess that the theory I am advancing which I think the jury would have been warranted in adopting, requires close figuring of time and distance. But so does the theory which convicts plaintiff of contributory negligence, and the rule is that the liberality of inference and deduction must be indulged in favor of the verdict of the jury and not against it. If it is a matter of seconds the plaintiff now, standing on her verdict, is entitled to the benefit of any doubt.

This proof shows that the defendant's bus was moving up Virginia Street at an excessive and unlawful rate of speed; that it attempted to pass the Wells automobile without sounding a horn or other warning, which was a direct violation of the statute. Code, 17-8-5. Under these circumstances, conceding that the same rule applies to city streets that applies to highways, which I am inclined to doubt, I do not believe that it would have been proper for the trial court to have given the instruction telling the jury that the defendant had a right to run its bus in any part of the street. I do not believe that it was incumbent upon the plaintiff to anticipate that the bus would, without warning, be on the left side under the conditions shown.

I think the question of contributory negligence depended upon not more than a second or two of time and was too close a thing for this court to deal with as a matter of law.