Laphew v. Consolidated Bus Lines, Inc.

I am unable to concur in the majority opinion in this case for two reasons. First, I think the Court has failed to give to the action of the trial court, setting aside the verdict returned by the jury, that consideration to which the ruling of any trial court is entitled. It is true, of course, that on a motion to set aside a verdict, the litigant in whose favor such verdict was returned is entitled to have the evidence in his favor considered in the light most favorable to him; but on the other hand, the judgment of a trial judge who sits in the case, hears the testimony, observes the witnesses who testify, and is in every way familiar with the case, is entitled to consideration and respect.

Second, the action of the trial court in setting aside the verdict in this case was based entirely upon its view that no negligence, on the part of the defendant corporation or its driver, had been shown in the case, and in this view I fully concur. The defendant's bus was being driven along a public highway, on its right side of the road, and within two feet of the right side of the paved portion of the highway. What, I think, was an emergency arose, in that an oncoming motor vehicle was approaching the bus, and occupied at least a part of the right side of the highway in the direction in which the bus was travelling. There were three things which the bus driver could have done. He could have suddenly stopped the bus; he could have driven ahead with the probable consequence of colliding with the approaching vehicle; or he could have done what he did do, and that was turn his bus to the right as far as the situation would permit. He did turn his bus to the right, but still kept within the paved portion of the highway, so that the distance he swerved to the right was not in excess of two feet. In doing so, I do not think he was guilty of negligence. It just happened that a leaning pole on the right side of the highway scraped the top of the bus, and there is evidence that this may have caused plaintiff's injury. Much stress is placed on the fact that the bus driver probably knew of the location of this leaning power pole. To my mind, this had nothing to do with the fact the bus was turned to the right at the point near this pole. The bus driver could not select the point where he was compelled to turn to the right, and the fact that the leaning pole was at that point was a mere coincidence.

Under the holding in this case there is no possible way by which a bus driver in this or a similar case can be held free from fault. As stated above, if he stops his bus and any injury occurs, an injured person would no doubt be entitled to blame the driver; if he plunges ahead and collides with approaching motor vehicles, it would be contended that he could have turned to the right and escaped the collision; and now where, as in this case, he did turn to the right, and probably did the only thing that saved a serious collision with the oncoming vehicle, he is held responsible for his conduct. I do not think any negligence is shown. Therefore, I would affirm the judgment of the Circuit Court of McDowell County, setting aside the verdict and awarding a new trial.

In my opinion, the case of Tochek v. Monongahela TransportCo., 109 W. Va. 20, 152 S.E. 776, states the correct rule. I agree that in the case of Isabella v. West VirginiaTransportation Co., 132 W. Va. 85, 51 S.E.2d 318, the principles announced in the Tochek case were departed from. While participating in that case, I did not join in certain rulings of the majority. I think we should not have departed from the principles announced in the Tochek case, and this dissent is a last futile protest against principles, now apparently established, which fails, in my judgment, to do justice in at least one aspect of cases growing out of actions of drivers of motor vehicles when an emergency situation is involved.