141 W. Va. 273 | W. Va. | 1955
Lead Opinion
The plaintiff, Leon McMicken, obtained a verdict against the defendant, James E. Province, in the Circuit Court of Season County, for five thousand dollars, for personal injuries and for damages to her automobile, alleged to have resulted from negligence of defendant in the operation of his automobile. The trial court overruled the motion of defendant to set aside the verdict and grant him a new trial, and entered judgment against defendant on the verdict. This Court granted a writ of error and supersedeas.
The accident occurred June 29, 1953, about five or five-thirty o’clock P. M., on State Route 17, approximately eight miles east of Point Pleasant. The road, at the point and at the time of the accident, was dry, and the day clear. Plaintiff, alone in her 1949 custom, four door sedan, six cylinder DeSoto automobile, was driving west from Charleston toward Point Pleasant, and defendant was driving his Buick automobile in the same direction, west, with two passengers, Johnson in the front seat and Denny in the rear seat. While defendant was attempting to pass the automobile of plaintiff, or immediately after he had passed it, the automobile of plaintiff left the hard surface of the highway, ran on to the shoulder thereof, to the right of plaintiff, for approximately three hundred and fifty feet, striking a tele
To the right of one traveling toward Point Pleasant, on the straight portion of the road, and at a distance greater than eighteen hundred feet east of the point of the accident, is located a business building designated in the record as the “Snack Shop”. Just west of the Snack Shop is a public school building; just west of the school building is the Dow residence; still further west, and approximately six hundred feet east from the point of the accident, a private road, serving a part of the Williamson farm, intersects State Route 17, at which intersection defendant’s witness Dow was seated on a farm tractor at the time of the accident. On the southerly side of State Route 17, opposite the above mentioned intersection, is the Williamson residence, and on the southerly side of State Route 17, east of the Williamson residence, is the Beech Hill Church.
Plaintiff, a married woman forty nine years of age, a former resident of West Virginia, but at the time of the accident a resident of Chicago, was returning to her home from Charleston at the time of the accident. She testified that while she was driving at a speed of forty five or fifty miles per hour, defendant passed her at a “high rate of speed, and he went on for a piece and he slowed down and ran over to the shoulder and slowed down to the left side of the shoulder, and when I got to
Near the time of the accident, Lee Meadows, driving a large truck, and his helper, James M. Day, traveling east, were approaching the point on the highway where the accident occurred. They were called as witnesses by plaintiff. Meadows testified to the effect that when he first observed the automobiles of plaintiff and defendant they were “between 350 and 400 yards” from him; that the automobiles “were side by side and the Buick was attempting to pass or was out in the left lane to pass the DeSoto”; that the “Buick turned towards the DeSoto * * * and * * * it .looked to me like he hit the car”; and that the Buick automobile was “at least 200 yards or better” from the truck he was.driving when it passed the DeSoto and got into the right lane. The witness Day testified to the effect that when he first observed the Buick and DeSoto automobiles they were side by side; that the Buick’“cut toward the DeSoto, the DeSoto left the road, and the Buick continued up the'road”; that he believed, but could not be sure, that the Buick hit the DeSoto; and that the speed of the two automobiles, in his opinion, was “between 50 and 60 miles an hour”. •
Defendant testified to the effect that below the Snack
The defendant’s witness Dow, who was .seated on the farm tractor at the time, as above pointed out, observed the automobiles of plaintiff and defendant approaching from the east from a point near the Dow residence, a distance of approximately eighteen hundred feet. He testified that at that distance from him the Buick had “pulled to the left of the center to pass another car”; that the two automobiles came toward him “side by side”; that they were “about even” when they passed him and were “doing 75” miles per hour; that he “thought it was a good race so I watched it”; that he could not tell whether the Buick touched the DeSoto; and that the DeSoto left the paved surface at an angle of about forty five degrees and traveled approximately three hundred and fifty feet to where it struck the tree.
The question posed by the evidence detailed is whether the contributory negligence of plaintiff is so clearly established that we must say, as a matter of law, that plaintiff can not recover under the facts disclosed by the present record. That defendant was negligent, culpably so, can not be doubted. The evidence of his own witnesses shows that he was operating his own automobile at a high rate of speed, seventy five or eighty miles per hour, when passing plaintiff’s automobile, and that he drove his automobile into the side of her automobile, or very close thereto, so as to force her from the paved portion of the highway, notwithstanding she was ■ at all
Appraising the evidence in the light of the holdings in the cases cited, we are clearly of the opinion that contributory negligence of plaintiff bars any recovery by her, in so far as the present record is concerned. From the evidence, there can be no substantial doubt that plaintiff and defendant engaged in the highly • dangerous, if not depraved, action of racing their automobiles on a
Plaintiff testified that she purchased the automobile which she was driving at the time of the accident about six months prior thereto, and that she paid therefor the sum of $1,395.00; that she had operated the automobile for the six months period and that it was practically destroyed by the accident and was sold for “junk” for the sum of one hundred dollars. By another witness, plaintiff established that the “book price” of one of the two series of that make of automobile, as of May, 1953, was $1,175.00, and the “book value” of the other series, as of the same date, was $965.00. No other evidence
In Stenger v. Hope Natural Gas Co., 139 W. Va. 549, 80 S. E. 2d 889, this Court held: “5. The measure of recovery for property destroyed through negligence is the fair market value of the property at the time, of destruction. The measure of recovery for negligent damage to property not destroyed, where the damage is of a permanent nature, is the diminution in the market value of the property by reason of the injury.” In Biederman v. Henderson, 115 W. Va. 374, 176 S. E. 433, this Court held: “3. Unless circumstances justifying a departure from it are shown, the rule for determining the amount of damages for injury to personal property is to subtract the fair market value of the property immediately after the injury from the fair market value thereof immediately before the injury, the remainder, plus necessary expenses incurred, being the damages.” See Ripley v. C. I. Whitten Transfer Co., 135 W. Va. 419, 63 S. E. 2d 626; H. B. Agsten & Sons, Inc. v. United Fuel Gas Co., 117 W. Va. 515, 186 S. E. 126; Tingler v.
Defendent contends that the giving to the jury of plaintiff’s Instruction No. 1, as amended, constituted prejudicial error. It reads: “The Court instructs the jury, that if you believe from a preponderance of the evidence that the plaintiff was driving her automobile on her side of the road in a lawful manner and the defendant in attempting to pass the automobile driven by the plaintiff struck the automobile of the plaintiff, while she was lawfully on her own side of the highway and caused her to lose control of her automobile so that it went off the highway and traveled out of control a distance of 300 to 350 feet where it struck a tree; and that if you further believe the accident would not have happened or the plaintiff would not have lost control of her automobile had it not been for the negligent action of the defendant in striking plaintiff’s automobile then you should find for the plaintiff and award her such damages as in your opinion will reasonably compensate her for her damages and injuries not to exceed the sum of $10,000.00, the amount sued for.” The objection to this instruction is that, being a binding instruction, it ignores the defense of contributory negligence.
We might dispose of the objection by pointing out that the evidence established contributory negligence of plaintiff as a matter of law, and that defendant’s peremptory instruction should have been given. See Davis v. Chesapeake & Ohio Railway Co., 61 W. Va. 246, 56 S. E. 400, 9 L. R. A., N. S., 993. But in view of the possibility of a new trial of the case, the Court is of the
A further suggestion has been made that the use, in the instruction, of the words “if you believe * * * the plaintiff was driving her own automobile on her own side of the road in a lawful manner * * *” sufficiently negatives contributory negligence. In Bragg v. C. I. Whitten Transfer Company, 125 W. Va. 722, 26 S. E. 2d 217, it was contended that the defense of contributory negligence was negatived in an instruction by the use of “* * * if you believe the plaintiff himself without negligence * * This Court, in the opinion, said: “We reject this contention. An instruction which directs a finding for a litigant should submit to the jury a complete factual hypothesis sufficient in itself to support the conclusion which the jury is conditionally authorized to reach. In other words, a binding instruction should be so drawn as to need no aid or supplement from another. Resort to other instructions to supply the necessary factual premise for the authorized conclusion generally results in confusing and misleading the jury. The portion of the instruction relied on as
Since the instruction last quoted is found to be a binding one, the jury covered questions of contributory negligence, we necessarily hold that the giving thereof constituted prejudicial error. It is true that other instructions given to the jury covered questions of contributory negligence, but prejudicial error created by the giving of a bad instruction is not cured by the giving of a good one relating to the same matter. ‘T. ‘Ordinarily, when contributory negligence of the plaintiff is relied on as a defense, it is prejudicial error to give for the plaintiff an instruction which directs the jury to find for the plaintiff if certain recited facts are believed by the jury from the evidence, but which instruction does not specifically negative contributory negligence on the part of the plaintiff. The error involved in the giving of such erroneous instruction is not corrected by the giving to the jury of other instructions covering contributory negligence.’ Syllabus, Nichols v. Mining Co., 113 W. Va. 631.” Payne v. The Virginian Railway Co., 131 W. Va. 767, 51 S. E. 2d 514. See Skaff v. Dodd, 130 W. Va. 540, 44 S. E. 2d 621; Bragg v. C. I. Whitten Transfer Co., supra.
The judgment of the Circuit Court of Mason County
Reversed; verdict set aside; new trial awarded.
Concurrence Opinion
concurring:
I concur in the decision of this Court that there was no competent evidence upon which a recovery of damages as to the plaintiff’s automobile could have been based; that it was reversible error for the court to give to the jury Plaintiff’s Instruction No. 1, as amended; ■and agree completely with all that has been said with reference to those questions in the Court’s opinion.
. I disagree, however, with the Court’s holding that the evidence in this record shows that the plaintiff was guilty of contributory negligence, as a matter of law. The testimony of the witnesses upon that question has been fairly and fully stated in the Court’s opinion. It has long been established by this Court and others that: “In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, assumed as true.” Pt. 1 Syl., Butcher v. Stull, et al., 140 W. Va. 31, 82 S. E. 2d. 278. When the verdict of a jury is buttressed by the approval of the trial judge, who, like the jury, had listened to the evidence, and observed the demeanor of the witnesses upon the witness stand, it is further strengthened. If reasonable men may fairly differ as •to the facts, or as to the inference to be drawn from them, the issue is generally for the jury, and not for the trial or appellate court. It is my opinion that the evidence in this record presented an issue for jury determination upon conflicting testimony as to whether the plaintiff was guilty of such negligence that it contributed proximately to the crash of her automobile,
It is true, as stated in the majority opinion, that the testimony of the plaintiff that defendant cut his automobile in front of her automobile ten or twelve times within a distance of a quarter of a mile might be incredible, but, after making that specific statement as to the number of times that this occurred, counsel asked this further question upon cross-examination, and the plaintiff made the following answer: Q. “He did that ten or twelve times in that quarter of a mile?”; A: “Quite a number of times.” I think the jury would have been justified in concluding that the plaintiff may have
The plaintiff was a woman driving alone on a long journey from Charleston, West Virginia to Chicago, Illinois, and this accident occurred in a relatively sparsely settled area between the towns of Winfield and Point Pleasant, West Virginia. The plaintiff testified that: “I had the impression he was trying to stop me.”; “* * * I didn’t attempt to stop. I didn’t know what he was up to, and I said, I will keep rolling. I didn’t know what he was up to.” Upon cross-examination, she was asked this further question, and made this answer: Q: “He had no ill-will toward you, did he?”; A: “But why was he molesting me? That is why I didn’t stop.”
It is my opinion that reasonable men could reach more than one conclusion from the testimony in this case as to whether the actions of the plaintiff were such that she was negligent, and that her negligence contributed proximately to the wrecking of her automobile, and injury to her person. To hold otherwise is, in my opinion, invading the province of the jury, and I would not do so. On what has been said herein, it follows that I would reverse the judgment of the Circuit Court of Mason County, and remand this case for a new trial, as the majority of the Court has held, but I would not foreclose the plaintiff’s right to have another jury, properly instructed, and with proper evidence before it as to damages to the automobile, determine from the same evidence that was presented at the first trial, whether the plaintiff was guilty of negligence which contributed proximately to her injury.