153 S.E. 298 | W. Va. | 1930
This is an action against father and son to recover damages to plaintiff's automobile through the alleged negligent operation by the son of the father's automobile. The case went to trial before a jury, and, at the conclusion of plaintiff's evidence, the court, on motion, and over the objection and exception of plaintiff, directed a verdict for the defendants. An exception was also taken to the action of the court in entering judgment on the verdict. *165
It is contended by counsel for defendants that the plaintiff has waived his right to complain of the action of the trial court in that he did not make a motion to set aside the verdict and award him a new trial — citing Freeburn, v. Railroad Co.,
In view of the very nature of a directed verdict and our practice in regard to saving exceptions where there is a demurrer to the evidence or the case has been submitted to the court in lieu of a jury, we are of opinion that theFreeburn Case is wrong in principle, and therefore do overrule the rule of practice therein laid down.
This brings us to the question of whether the court erred in directing the verdict. The issue thereunder is whether or not the evidence was such as to bar a recovery on the ground of contributor negligence. Defendant cites Krodel v. Railroad.Co.,
Whether it is the duty of a driver, on meeting an automobile *167 on the latter's wrong side of the road, to stop to avoid a collision, cannot ordinarily be determined as a matter of law. 1 Blashfield, Cyc. Auto. Law, p. 372, § 10. Plaintiff was driving up grade at a speed of fifteen miles per hour. Defendant's automobile appeared around a curve at a high rate of speed (plaintiff's automobile at the time being on his extreme right-hand side of the road, the outside of the curve), ran over on plaintiff's side of the road, and struck the latter's car, knocking it off the road and over the bank. The accident occurred after dark. Plaintiff had the right to assume, on the first appearance of the other automobile (100 to 150 feet distant), that its course would be changed — that it would observe the law of the road. The particular point of time when a person is no longer warranted in indulging such assumption is for the jury. As the defendant's car approached, plaintiff saw that its driver was making an effort to get it back to his right side of the road. And he might have succeeded in so doing had the car not started to skidding sidewise fifteen feet from the point of the collision. Did the plaintiff in proceeding act as a reasonably prudent person would have done under the circumstances? If he did, he is not guilty of contributor negligence. Under the case made we are of opinion that the matter was improperly taken from the jury.
The judgments of the court of common pleas and circuit court of Kanawha county are therefore reversed, the verdict set aside, and a new trial awarded the plaintiff.
Judgment reversed; verdict set aside; new trial awarded. *168