Isabella v. West Virginia Transportation Co. ( 1948 )

I concur in the reversal of the judgment of the trial court because of its action in giving the erroneous instruction mentioned and discussed in the opinion of the Court. I also agree that the first point of the syllabus, which deals with that instruction, contains a correct statement of law. I would, however, reverse the judgment for the added reason that, in my opinion, the evidence introduced at the trial did not establish negligence on the part of the defendant as the proximate cause of the injury sustained by the plaintiff.

The undisputed facts, disclosed by the evidence, show that the driver of the bus of the defendant was suddenly, and without fault upon his part, confronted with an emergency which he did not create but which called for his immediate action. When the driver, operating the bus on its right side of the improved portion of the highway, first saw the oncoming truck approaching from the opposite direction, at a speed of about forty-five miles per hour, at a distance of approximately one hundred and fifty to two hundred feet from the bus, he had to decide at once whether to check the speed of the bus and endeavor to stop it, or to swerve suddenly to the right and run off the hard surface portion of the road in an effort to avoid a collision. He chose the latter course and as the result of that act plaintiff was injured when the bus suddenly tilted as its right front wheel entered the ditch on the soft berm about one foot to the right of the hard surface portion of the highway. When confronted with the situation just referred to, the operator of the bus had no reason to expect or believe that the driver of the rapidly approaching truck would pull to his right in time to pass the bus without striking it. The driver of the truck gave no sign or indication that he would check its speed or change its course in time to avoid the collision which was imminent. In these circumstances, which were wholly beyond the control of the operator of the bus, his only apparent available means of escape was to swerve suddenly to his right and run upon the berm. If he slowed or stopped the bus without driving to the right, and the truck continued its approach without changing its course, as then appeared to be certain, any attempt to check the speed of the bus or to stop it in its position on the road would not have prevented a collision with probable resultant serious injury to the passengers in the bus and to the driver of each vehicle. The belated and unexpected act of the driver of the truck in changing its direction and passing the bus as it veered to its right and off the road is of no consequence in determining whether the operator of the bus exercised the care of a reasonably prudent person in the circumstances which existed at the time.

The basis of the plaintiff's action is the negligence of the defendant in the operation of its bus in which she was riding at the time of her injury. In my opinion under the evidence, as disclosed by the record, the trial court should have granted the motion of the defendant for a directed verdict, made at the conclusion of the evidence, and should have instructed the jury to return a verdict in its favor, because negligence of the defendant was not established. "In an action based on negligence, it is reversible error for the trial court to refuse to direct a verdict in favor of the defendant when the plaintiff has failed to show facts from which negligence upon the part of the defendant can reasonably be inferred."Cooper v. Pritchard Motor Co., 128 W. Va. 312, 36 S.E.2d 405, Syllabus, Point 4. Though, as stated in the opinion of the Court, as an exception to the general rule that negligence is never presumed, where the relation of common carrier and passenger exists and the passenger is injured while passively riding in the vehicle of the carrier, a prima facie case of negligence arises, in my opinion, upon the undisputed facts of this case, no negligence of the defendant was shown. This presumption of negligence is rebuttable, and when explained or overcome, as it was in this case by the evidence introduced by the defendant, is not of itself, evidence of negligence. A rebuttable presumption "is not evidence of a fact, but purely a conclusion, having no probative force, and designed only to sustain the burden of proof until evidence is introduced tending to overcome it." Jenkins v. Spitler, 120 W. Va. 514,199 S.E. 368. The testimony of witnesses that they did not see the approaching truck, without giving any reason for their failure to see it, being purely negative, does not create a conflict in the evidence with respect to the testimony of the witnesses who testified that they saw the truck, Cavendish v.Chesapeake Ohio Railway Company, 95 W. Va. 490, 121 S.E. 498; and the other material facts are not in dispute. When the evidence upon the issue of negligence or contributory negligence is not conflicting and only one inference may be drawn by reasonable men from undisputed facts, the issue becomes a question of law for the court. Cooper v. PritchardMotor Co., 128 W. Va. 312, 36 S.E.2d 405; Gilkerson v.Baltimore Ohio Railroad Company, 129 W. Va. 649,41 S.E.2d 188. This rule applies to the undisputed facts disclosed by the evidence which shows clearly and to the exclusion of any reasonable inference to the contrary, that the defendant was not guilty of negligence which caused the injury to the plaintiff.

I think this case is controlled by the holding of this Court in Tochek v. Monongahela Transport Company, 109 W. Va. 20,152 S.E. 776. In that case the driver of a bus, operated by the transport company as a common carrier, when about to pass an automobile on a highway in front of the bus, was faced with an emergency caused by the act of the driver of the automobile in suddenly turning it in front of the bus which at the time was about fifty feet behind the automobile. To avoid a collision the operator of the bus quickly applied the brakes and abruptly checked the speed of the bus from ten or fifteen miles per hour to about five miles per hour. These acts resulted in injury to the plaintiff, a passenger, by causing her to fall and come in contact with a part of the inside of the bus. In holding that the bus driver in the Tochek case was not guilty of negligence, this Court said: "* * * we consider only the question of the negligence of the bus driver. That circumstance is controlling. In the light of the foregoing evidence, as disclosed by the record, the peremptory instruction offered by the defendant should have been given."

The time element in the Tochek case does not clearly appear from the opinion of the Court, but it is unlikely that it was less than that which appears in the case at bar. Here the evidence shows without dispute that the speed of the bus was about twenty five miles per hour when its driver first saw the oncoming truck traveling at the rate of forty five miles per hour at a distance of one hundred and fifty to two hundred feet ahead. The combined speed of the two vehicles brought them toward each other at the rate of at least one hundred feet per second. In that situation the bus driver had only a second and a half or at the most two seconds to decide what to do. Obviously, he did not have sufficient opportunity, for want of adequate time, or even any time, to deliberate whether to attempt to stop or check the speed of the bus or, instead of doing either, to pull to the right and run off the hard surface of the road as he did in fact. The discussion in the opinion of the Court of that feature of this case does not seem to me to justify any distinction between the situation in the Tochek case and that which existed in the case at bar, which would render the holding of that case inapplicable here. On the contrary, I think the holding of this Court in that case is decisive of this case and operates to dispose of the question of negligence, under the evidence, as a matter of law, in favor of the defendant and to exonerate it completely of any charge of negligence.

I would reverse the judgment of the trial court for the additional reason that the plaintiff has failed to establish her charge of negligence upon the part of the defendant. I would also hold that, under the evidence as disclosed by the record, the question of negligence in this case was one of law for the court and not one of fact for the jury.

I am authorized to say that Judge Fox concurs in this opinion.