
    (No. 561
    CHARLES W. NEVILLE, Claimant, v. STATE CONSERVATION COMMISSION, Respondent.
    
      Opinion filed February 7, 1947
    
    Appearances:
    
      M. S. Hodges, for claimant.
    
      W. Bryan Syillers, Assistant Attorney General, for respondent.
   MERRIMAN S. SMITH, JUDGE.

Mr. Cokeley, superintendent of the trout hatchery operated by the state conservation commission, at Petersburg, West Virginia, notified Hansel Ruddle, who was employed by the conservation commission as game protector for Pendleton county, in May, 1945, that he was sending a load of trout to distribute above Thorn Creek, near Franklin, Pendleton county, West Virginia. On the morning of May 24, 1945, Ruddle arrived at the court house at Franklin with a pick-up truckload of fish; he called Dr. Richard Boggs, a dentist in Franklin, who was president of the local sportsmen’s club and advised him of the arrival of the truck and he talked with Charles W. Neville, the claimant, on the street; consequently a number of the sportsmen’s club members gathered around the truck to look over the fish. Frank Sites, the driver of the truck, Ruddle and Neville (the claimant) occupying the cab, and Jimmy Anderson and Stanley Spaulding, two high-school boys being in the rear with the tank of fish, the truck proceeded on its journey to distribute the fish. They were accompanied by Dr. Thacker and at least one other party in a private passenger car.

On the way out, in leaving the highway and crossing a field, Ruddle cautioned the driver, Frank Sites, not to drive too fast because the boys on the rear of the truck . . . would fall off or something.” (Record p. 19). After having stocked all their fish and emptied the tank, and upon their return while on u. s. route 220, about four miles from Franklin, the driver of the truck, in passing another oncoming truck, rounding the curve at a point known as Trout Rock Curve, lost control of the truck and went off the highway over the bank, upsetting the truck and injuring the claimant, Neville, who is seeking damages for his medical, hospital and incidental expenses thereto, and for loss of time from his work.

For the past several years various sportsmen’s clubs over the state have insisted that they accompany the game protectors when restocking the fish so as to be on hand when the fish are released, primarily for two reasons; first, that they might see that the fish are properly stocked, and second, to ascertain the location of the holes that the fish go in. It has grown to be a regular custom that these clubs be notified of the time and place of these stockings by the game protector, since they are conducted primarily for the benefit of the fishermen and public of this state. However, no specific order was entered on this particular distribution, according to the following testimony of Mr. B. D. Wills, supervisor of state fish hatcheries: “. .. . there .has never been any specific request by the commission to have them meet the trucks and go out. They take that on themselves, that if they want to go, why, they have gone in the past and they want to see how they are stocked.” (Record p. 37). Consequently, when these club members go on these restocking tripa ihoy assume the risk.

In the very nature of automobile accidents each one is dependent upon the specific, incidents, circumstances and acts surrounding the particular accident. And in the instant case when driving through a rough held, Huddle cautioned the driver not to drive too fast on account of the boys in the rear of tin1 truck. If the claimant felt that the driver of the truck was a reckless driver he could easily have gotten out of the truck and could have ridden in the private car which was accompanying the (ruck and driven by J)r. Thacker. The evidence further shows, (record p. 4) that Neville testified: “So, there was one sharp curve that we come to and 1 made the remark to him and Mr. Huddle that if we got around this one we may save our necks and get to town alive, but we didn’t.” This was just before the accident occurred and about four miles from their destination. Again, if the claimant was so fearful of having an accident he could have had the truck stopped and gotten out. Before the accident the truck had made about ten stops and if the claimant was under any apprehension or fear that the driver of the truck was reckless, ample opportunity was afforded him to alight from the truck. By his own evidence the claimant assumed the risk by continuing his ride with the driver for, after having remonstrated with the driven-, he could have alighted from the truck at any one of the stops which it made during the process of distributing the fish. Young v. Wheby, 126 W. Va. 741. Speed is a relative element depending upon the kind and condition of the. roadbed, the topography of the terrain and the mechanical condition of the- machine; also the coordination of the driver.

The evidence in this case is conilici.ing as to the speed of the truck at the time of the accident. Ruddle testified that they were making from thirty to thirty-live miles pot-hour, while the claimant says they were going from (iffy to fifty-five, miles be fori' rounding' the curve at. Trout Rock, so upon passing the oncoming- truck Sites momentarily lost control of the wheel, and from the remarks of Neville, on route, who apparently was a highly nervous passenger and by this time had played upon the driver’s nerves to the extent that he momentarily lost control and the truck headed over the embankment. In this manner the claimant contributed in no small way to the incoordination of the driver.

The stocking and restocking of the streams and game preserves by the conservation commission is done primarily for the benefit and pleasure of a particular small group of the citizens of the state and the state derives no particular benefit by having the beneficially interested members of a club inspect or assist in the distribution of the fish or game and there is no record of a general specific request by those in authority to have them meet the trucks or to accompani) them during the distribution.

Where a guest passenger who, with another passenger, protested to the driver regarding the speed of the truck, after having made several stops affording him ample occasion to alight from the truck, fails to avail himself of such opportunity, thereby assumes the risk, and an award will be denied.

Award denied and claim dismissed.

CHARLES J. SCHUCK, Judge,

dissenting.

I cannot agree with the majority opinion filed in this case, primarily for the reason that I do not believe the facts justify the conclusion set forth in the opinion. Too much is taken for granted which is not supported by the evidence and assumptions are made and conclusions drawn that are not supported by the evidence as introduced during the hearing. In the first place, I am quite sure that an impartial reader of the transcript of the evidence must conclude that the claimant here was not only an invitee, but that he was rendering a service to the state department involved for which no charge was made, and which department was carrying out one of the purposes for which it is created and for which those in charge are paid by the taxpayers of the state. It doesn’t make any difference, in my opinion, what some superintendent may say, that no specific requests are made for outsiders to meet the trucks about to make distribution of fish, the contrary is shown by the evidence in this case; not only was the claimant invited to accompany the driver and game warden on the trip in question, but the warden had special instructions to obtain the services of high school boys, as well, to accompany them on this trip of fish distribution. The majority opinion seems to be based entirely on the case of Young v. Wheby, 126 W. Va. 741, which in my judgment does not govern in the instant case. In that case the injured person was purely a guest passenger, all of the persons in the car, including the passenger in question, were drinking, and an ample opportunity had been given the injured passenger to get out of the automobile at a town where one of the passengers had alighted, and after she was fully aware of the reckless driving of the operator of the automobile and after she must have concluded that the said driver was under the influence of liquor. No such circumstances ar presented in the case before us. It is true that the driver of this truck hauling the fish had been cautioned on the way out to the point of distribution, while crossing an open, rough field, primarily because of the fact that two high school boys, who had been asked to accompany them, were riding on the rear of the truck and might be thrown off owing to the rough condition of the ground. Claimant testifies (record page 12) that at the time the driver was cautioned about the boys riding on the rear of the truck, that he wasn’t making excessive speed, but that as the field over which they were passing was rough, he should drive slower. It was the rough condition of the field and not the matter of speed at that time which brought the caution to the driver from the game warden himself, who was riding in the cab of the truck.

The statement is also made, in the majority opinion, that claimant could have ridden with a certain doctor who was accompanying the expedition in his own machine, but I fail to find any support for this contention in a careful reading of the transcript and it seems to me that it is simply an assumption on the part of the majority members so far as the claimant riding with the doctor in question was concerned, and not justified by the evidence in the case.

So also does the evidence reveal that the farthest point away from Franklin from which distribution was made was ten or twelve miles, and to state or to intimate that claimant could have refused to ride on the truck would be an unwarranted assumption not justified by the circumstances as presented at the time of the hearing. I repeat, claimant was not only an invitee but he was assisting in the work of making the distribution of the fish for and on behalf of the commission charged with that duty and for which he, claimant, was to receive no compensation.

On the return trip and when about four miles from Franklin, the driver was cautioned that he was then operating the machine in a reckless manner by reason of the speed that he was maintaining and in my opinion claimant had the right to assume that the driver of the truck would heed the warning and act accordingly in the operation of the truck. I cannot see that any reasonable opportunity was given the claimant to leave or get out of the truck, nor do I believe the law even as set forth in the Young case, supra, would contemplate that claimant was obliged to get out of the truck and perhaps run the risk of walking back to Franklin, a distance of four miles. It seems that shortly after being given the caution referred to, the truck was wrecked and claimant injured by reason of the excessive speed and the carelessness of the driver, an employe of the state conservation commission. Under all the circumstances, I feel that claimant is entitled to an award.  