*1
121
aside
it is
be set
as excessive unless
unsupported
large
or
evidence
is so
that it indicates that the
jury
influenced
passion, partiality, prejudice
corruption,
Pugh,
or entertained a
of the case.
v.
mistaken view
Davis
569,
9;
Welker,
133
E.
Yuncke v.
W. Va.
57 S.
128W. Va.
299,
410;
S. E. 2d
36
Meadows v. Corinne Coal and Land
522,
115
Company,
281;
W. Va.
177 S. E.
Thalman v.
Schultze,
64,
111
303;
Guyan
W. Va.
160 S. E.
Bowling v.
Lumber Company,
309,
86;
143 S.
Truschel
v. Rex
Company,
Amusement
102 W. Va.
E.S.
30;
Wilson
Company,
West
Amusement
99 W.
290, 128
Evans,
Va.
S. E.
Gibbard v.
87 W. Va.
S. E.
Given v. Diamond Shoe and
Garment
DiBacco,
101 S. E.
Hunt v.
69 W. Va.
Kennedy
Chesapeake
and Ohio Rail
way Company,
As error appears judg- ment of the circuit court is affirmed.
Affirmed. Forest W. Administrator the Estate Stanley Moore, Ferrari, Deceased
Skyline Inc., et al. Cab,
(No. 10186) Submitted February 1950. March Decided *2 Given, Judge, dissenting.
Salisbury, Loginsky, Loginsky, & Samuel D. Hackney Hackney, John G. for in plaintiffs error.
Dayton, Love, ‘Gilbert, Jr., Camgbell & Ernest H. Moses, Thomas in W. for defendant error. Judge:
Haymond, 8, 1948, in Early morning Sunday, of August Stanley Ferrari, young man and of married the father three a, children, injured small in fatally collision between automobile him and a by driven owned defendant, Inc., Skyline Cab, its em- operated ployee, Lewis at the intersection of Street, Court Street and Virginia thorough- two public fares, Charleston, in the City County. Kanawha In an death, wrongful action for instituted Moore, W. Forest administrator of the estate of Stanley Ferrari, the jury circuit court of re- county, a verdict $10,000.00, turned both for against defendants which the court entered the of which the judgment complain on this writ error. The decedent Stanley regularly who was em- ployed night shift the Nitro plant on at the Monsanto at Chemical not work employment did eight 1948. the eve- August Shortly before o’clock in home, of that ning day left his outside the City Charleston, ostensibly purpose going to his cousin, work that at night accompanied by his plant, McClanahan, Estil in Ferrari’s automobile. Instead Nitro, going work at Ferrari and his companion at two where stopped resorts Charleston intoxicants were sold and their time they where until spent shortly before the injured wreck which Ferrari was fatally occurred, sometime between o’clock and four two o’clock the following At at morning. places they which stopped enough Ferrari’s drank to become companion but, somewhat intoxicated other than the presence some collision, bottles of beer in his after there automobile is no indication that Ferrari any any drank intoxicants time. After they place they left second which wreck, had stopped immediately automobile, drove his riding in which his companion seat, in the front south Court extends *3 Kanawha a right Boulevard and at angle Virginia crosses Street, a main which runs and thoroughfare, east west in a the in city. proceeding southerly While direction Virginia Boulevard, across Street toward Kanawha the automobile the taxicab and driven traveling which was on Virginia east collided near the the center of the two The front of streets. intersection end the the of taxicab struck the of side automobile at front its door and caused to turn on its left and side come to rest a from the southeast corner of short distance the intersection. Neither the Ferrari auto- occupant injured the the The mobile was automobiles. impact sheriff, a deputy driver of the taxicab and who was near the when the col- southwest corner of intersection occurred, lision went automobile succeeded riding getting Ferrari’s who had been on companion, automobile, seat, right side the front from which fire after the came caught almost automobiles immediately extricate Ferrari from together. They were unable lower or left automobile before he received side shortly from in a after hospital the burns died light accident. At the time the collision the traffic traf- and there was no burning the intersection was not at automobiles the two except the intersection fic in or near on automo- headlights The both involved in the wreck. time, the Fer- lights at the on burning biles were at which the rari were dim. The intersection automobile city district” of the “congested collision occurred is in the in- and, a ordinance which was municipal section of evidence, area is of vehicles in that troduced hour. restricted to fifteen miles building On the northwest corner of the intersection is line each of streets. building which extends a drug is store story building occupied by first of this on glass fronting there is a window each street. large building The location of the obstructs view west as it ap- Street of the driver of automobile from the north on Court Street proaches the entrance the inter- until the automobile reaches section. Street from the Directly drugstore across Court at an auto- the northeast corner of the intersection is building mobile service station which sets back from the lines of lot and the vacant affords portion lot Street of an auto- along Virginia view east driver the intersection approaching mobile on Court Street from the north. On the southeast corner of the intersection is and, the Charleston Hall this City opposite building, the southwest corner of the is the Kanawha County Court House. There the inter- light traffic section, signs but there are no on Court Street at stop entrance to the intersection. each
As to at which was. automobiles traveling just the time of collision and before it *4 happened, eye evidence is conflict. Four sharp them, witnesses testified the trial. One of a deputy sheriff, three,, testified in The other plaintiff. behalf taxicab, who was a. woman man passenger and the who was with riding testified as witnesses the defend- collision,, ants. Two other who did not see the persons or the Ferrari but heard it and saw either taxicab also shortly automobile testified. happened, officer, city a testi- police A witness for plaintiff, and a morning, about three o’clock in the short fied that a on collision, he car south patrol before the drove time intersection; way that he on Court Street city building; to the that he reached entrance when to the intersection he looked west on stopped, Virginia at a traveling twenty saw taxicab east point feet west thirty west of the end of block on city right; that of the taxicab at that point was hour; twenty five miles that there no twenty automobile behind and no traffic on his automobile Court Street south the intersection Virginia or on Street intersection; east because the distance the taxicab Virginia on Street the west of the Court Virginia Street intersection with he Street drove upon Virginia turned east on Street and en- tered from alley Virginia city garage just Street east and the rear of the city building; that after he had turned east on he Virginia Street heard the taxicab make “sounded like bucket” being dragged noise street; when gone he had to the garage he heard “Fire”; someone he cry through came the city build- to the scene of the ing to Street wreck and saw the Ferrari automobile on its side in the intersection with south, its wheels pointed also observed the taxicab injured man who was taken in an ambulance to This hospital. witness did not collision see the or the until after automobile the collision had happened. for the deputy Another witness sheriff who collision, that he saw testified came out the front entrance of the court about one feet house hundred west Court intersection and Street that he walked east along Virginia Street southwest corner the in- tersection; that he saw the traveling Ferrari automobile intersection; Street it approached south Court did it slowed down but not and came into the stop Virginia Street; going south across that *5 the noise the tires of heard made the taxicab no- Street; it coming Virginia ticed east on that he first saw it it was near the intersection in when the block west the intersection; Street that Court taxicab speed hour; from forty sixty per was miles that the Ferrari automobile was in low or traveling gear second and was the intersection when crossing he first saw the taxicab Street; taxicab, him on that on Virginia west of when hit the Ferrari automobile which con- run the length tinued to for “about and then of itself” over”; the taxicab, “turned that after it struck automobile, “bounced back” twenty Ferrari ten to feet. witness stated that he did not car This see the patrol he officer testified drove police across the shortly before collision.
The defendant driver testi- that he went fied from his stand Corners to Roane Five a passenger Street for who wanted to to Darst Street go eastern Charleston; section of that he drove with on Street Avenue passenger Pennsylvania Roane Street; came he Virginia and then into that as traveled Virginia east on Street he saw the car enter the patrol Street, intersection from Court proceed Virginia hall; and turn into the east of that as he alley just city came to Street the Ferrari car “dashing Court came me, there, I just in front of how it got there knew accident”; he and so of course we had that had his “feet of the taxicab when it hit the Ferrari auto- brakes” mobile; after “go that the taxicab did not anywhere near the center of street impact”; hour; twenty at a five miles twenty per car; on the lights not notice Ferrari any he did traveling thirty hour thirty per it was five miles in the taxi- it came the intersection. passenger as into from concerning trip corroborated the driver cab of the collision. She testified that Roane Street the scene came intersection the the two automobiles hour; twenty five of each was miles about just of us all of a sud- the Ferrari automobile “was front den”; not at all “go any and that taxicab did distance collision, eyewitness after the The other impact”. man the front seat of automo- riding who testified that when it came out bile driven by Court Street and started across Street *6 “kind of I don’t know stopped. checked but he never not, across, whether he come gears he shifted or and come I right light my on and the flew face and seen this up sat, taxi and it struck us where I coming door.”; that Ferrari into the intersection at a and drove twenty hour. Another speed forty per miles witness produced crossing the defendants testified that in Court by at a Street on foot one point about hundred feet north of the he saw the Ferrari going automobile street; south on to pass him; that that he waited for it that “making hour, at that time it about 25 miles less”; him, more after the automobile passed he crash;- heard a and that he went immediately scene and saw automobile collision “burst into flame”. cross-examination
During the Hissom he if was asked he was nature a careful and by driver if all observed limits at times. To these questions he gave objection affirmative answers. Over then he was not, if asked he had in July, pleaded guilty to a charge of driving paid reckless and a fine for that offense. His answer was in the affirmative. The ex- cepted to this answer moved that and be This stricken. motion the court overruled.
By assignments their of error the defendants seek re- judgment versal of the on these grounds: (1) principal Instruction No. by plaintiff given offered and by court, refused; should have been (2) certain instruc- tions, including instruction find for the peremptory defendants, refused, offered by defendants and should instruction, have been and given, given one modified and court, given should have been without modifica- tion; (3) and evidence of plea guilty
defendant Hissom to the charge driving reckless on a occasion should been prior excluded. 1,No.
Instruction
offered
and
plaintiff
given by
defendants,
specific objections by
the court over
In
instruction.
substance it told the
binding
jury
if the
believed from all the
jury
evidence
de
defendant,
agent
fendant
employee
Inc.,
Skyline Cab.
drove the taxicab into the intersection
twenty
in excess of
miles
hour
with
out due
regard
safety
convenience of
vehicles,
other
the defendants “are
guilty
negligence
that if
directly
as matter of law” and
such negligence
caused the death of
should find for the
jury
jury
even
should
that Fer
though
believe
rari was
come to a
negligent
failing
complete stop
Street from
or in
entering Virginia
Court
jury
at an excessive rate
unless the
speed,
negligence
should further believe
of Ferrari was
proximate
a direct and
cause
his death. The instruc
*7
tion
the law with
of the
respect
negligence
misstates
contributory negligence
defendants and
of the plaintiff.
Virginia-Pocahontas
of Norman v.
Coal
Since the case
405,
857,
(N.S.)
69 S. E.
31 L. R. A.
Company, W. Va.
504,
of a
disregard
has
held that
repeatedly
this Court
an
or a
requirement
negli
of
ordinance
statute is not
a matter of
facie actionable
gence
prima
as
law
is
of
it
the natural and
cause
negligence
proximate
when
is
Virginia-Pocahontas
Company,
v.
Coal
injury.
Norman
504;
405,
857,
(N.S.)
Mangus
31 L. R. A.
68 W. Va.
69 S.
718,
105 E.
Proctor-Eagle
Company,
v.
Coal
W. Va.
S.
206,
Press
Morgantown
Bobbs v.
Lumber and Construction
879; Tarr v. Keller
108 S. E.
881,
R.
99, 144 S. E.
60 A. L.
Company, 106
Va.W.
Woodall,
113 W. Va.
Oldfield
Skaff
Rosenshine,
44 E.
Rich v.
Dodd, 130
30,
No error in appears the action of the trial court re fusing give instructions offered designated 3, 4, 9, as 10 and or in refusing to In give struction 5 in its original form and in giving it as modi fied. The substance of Instructions 4 and 10 was covered given Instruction as modified court. These instructions dealt with contributory negligence and were to the effect that if Ferrari in violation of the city ordinance entering intersection of Virginia a through street, not automobile, did stop his yield way prima facie guilty contributory negligence that, if such negligence proxi mately decedent, contributed to the death of the plaintiff not could recover. modified, Instruction sufficiently covered the theory of the defendants on that question. duplication instructions is neither necessary nor desirable. Davis Pugh, *8 9; Dodd, 57 S. E. 2d 44 W. Va. S. E. 2d Skaff State v. Humphreys, 128 W. Va. 36 S. E. 2d Frank Pence, lin v. 36 S. E. Robertson V. Hobson, S. Drake v. Clay Hardware and Supply Company, 157 E. 35. The court the modified statement in Instruction offered, if the facie originally prima negligence
of the contributed “in manner” plaintiff proximately any decedent, to the death of the the plaintiff could not re- cover, “in manner” by substituting any for the words the any degree” gave words “in the instruction with that modification. As so modified it was not materially changed. Instruction 9 related to the of the action effect of the in parties for the vouching veracity of witnesses produced by them and the effect of or contradictions in- in testimony consistencies for the witnesses plain- tiff with respect ability of the jury determine whether preponderance the evidence was with the plaintiff or and whether the plaintiff had carry failed proving burden his case pre- ponderance It evidence. have improperly would the jury and, instructed upon weight the evidence reason, for that properly refused. Instruction would have told the in jury offering testimony of certain witnesses for their plaintiff veracity vouched and that the law did not him or permit to discredit im- peach them. It appear does not at- plaintiff tempted impeach witness' who testified any in his be- half instruction would submitted a ques- tion to the jury. of law The action of the court in refusing the instruction was proper. in controlling question presented this case is
the refusal the court to give Instruction peremptory instruction, which would have jury directed the return a verdict in favor of the defendants. As already indi- cated, evidence uncontradicted is that did not stop entering yield way to taxicab which street through was ap- the intersection on his His proaching right. conduct both particulars these violated ordinance. The clear is that came preponderance evidence at a excess of the prescribed limit It clear that into by the ordinance. is also he drove Vir- ginia looking without west while traveling Street detect presence oncoming Court Street taxi-
131 of which must seen if headlights cab the he he had It if looked. is manifest from the evidence he had looked, do, as it to before he stopped duty drove into the the collision would not have occurred, and that his failure to observe duty proxi- this the mately contributed to collision which resulted in his death. These material facts are established and clearly the evidence which them is bears upon undisputed. indicates, Though the evidence and the verdict of the jury establishes, of the driver primary negligence record, evidence, under by as disclosed Ferrari was guilty contributory negligence. When material facts are and reasonable men can undisputed them, one negli- draw but conclusion from contributory gence Welker, ais law for court. Yuncke v. question of 410; Taylor City W. E. Hunting- Va. 36 S. 2d ton, 30 E. Jackson v. S. Chesapeake and Ohio Railway Company, 110 W. Va.
McLeod Laundry Company, Charleston Railway S. Coleman and Western Norfolk 100 W. 131 E. Daniels v. Chesa- Va. S. peake Railway and Ohio Company, W. Va. In
E. 695. court refusal of the to consequence, give peremptory instruction defendants requested by constituted reversible error.
One of
of error
the correct-
assignments
challenges
de-
requiring
ness of the
the trial court in
ruling of
fendant Hissom
answer a question, propounded
by
for
by
attorney
plaintiff,
cross-examination
to a charge
which he
if he
pleaded guilty
was asked
had
against
July,
him
driving preferred
reckless
offense,
an-
and
a fine
which
he
paid
question
The defendants
interposed
swered in
affirmative.
general objection
and
question
moved
strike
insist,
ground
of ob-
answer.
defendants now
as a
if
jection,
asking
Hissom he was
always
nature a careful driver and if he
observed
automobile,
questions
limits
when
inquiring
then
about
gave
replies,
affirmative
offense,
plea
prior
transcended the limits of
cross-examination,
proper
made the defendant his wit
subject
ness as to the
matter of the preliminary questions
answers,
improperly attempted
impeach his
own witness. As the foregoing inquiries were within the
scope
legitimate cross-examination,
the contention of
merit.
point is without
To test
*10
the credibility of a
a
witness is
fundamental element of
Friedman,
cross-examination. State
4,
v.
124
18
W. Va.
E.S.
2d 653. As
affecting
credibility of the defendant
witness,
aas
evidence of his
a
plea of
guilty
prior offense
Taylor,
was admissible. State v.
130 W. Va.
74,
549;
42
McMillion,
S. E. 2d
State v.
197,
127
32
W. Va.
625;
S. E.
Mullenax,
2d
State v.
124
243,
W.
20
Va.
S. E.
901;
Friedman,
2d
State v.
4,
124 W. Va.
18 E.
653.
S.
2d
however,
It was competent,
for that limited purpose only.
It was not
for the
competent
of
purpose
establishing negli
gence of the defendant
connection
with the collision.
Evidence of the conviction of an offense
out of
growing
of a defendant which
conduct
forms the
of a
basis
civil
action for negligence can not be used in such action as
of
proof
negligence
upon
part of the defendant. Utt
Herold,
v.
719,
127
34
357;
W. Va.
S. E. 2d
Interstate Dry
Williamson,
Goods Stores v.
156,
301,
91
112
W. Va.
S. E.
258;
31 A. L. R.
109,
Shires v. Boggess, 72 W. Va.
77 S. E.
542. A
judgment rendered
of
upon
plea
guilty arising
facts, however,
from the same
admissible
such civil
action as an admission
upon
part
Herold,
negligence.
tends
establish his
Utt v.
719,
357;
E.
Interstate
Goods
Dry
Williamson,
v.
156, 112
301,
Stores
91 W. Va.
S. E.
31 A. L. R.
258; Gillespie
America,
v. Modern Woodmen
101 W.
602,
indicated,
Va.
For the errors circuit judgment reversed, aside, court is the verdict and a new trial is set is awarded the defendants. reversed; verdict
Judgment aside; new awarded. set trial Given, Judge, dissenting:
I agree that instruction No. giving plaintiff’s error, constituted reversible reasons stated Court, I opinion agree cannot defendants’ Damron, peremptory given. instruction should have been driver, sheriff and an who testified deputy experienced *11 was the observed plaintiff only and who witness who collision, that immediately both cars before the stated approached speed taxi intersection at “between hour; on the and 60 miles” that the driver did not per put brakes; that taxi near the west was first intersection time Ferrari en- where collision occurred at the from the taxi impact tered Street and that Ferrari. Damron also being overturned the car driven Ferrari, reaching that testified I then out. don’t slowed down “real slow and started or low it gear gear changed know whether in second * * were burn- lights and that the on both cars gears. taxi, driver of the admits ing. hour”, that “from to miles per that he limit at to ten miles hour above the per five being jurors of the accident. The viewed scene point They and were informed as distances. collision as to their judge the witnesses could also observed veracity.
There was no evidence whether Ferrari looked in the direction from which the taxi was approaching be- but, fore entering from the fact that he slowed down and changed gears, and from the that fact look, was his duty jury would be warranted in finding he did look. found,
From this evidence the jury could have and ap- parently find, Ferrari, did entering inter- section, slow”, slowed down “real changed gears, looked west on Virginia saw the taxi approaching intersection from some distance away; that Ferrari then entered intersection in an cross, attempt believing that he had intersection; time to cross the sufficient the taxi was being driven toward the intersection at a forty to sixty miles hour not and did slow down before entering intersection.
Under these circumstances the taxi viewing some distance away, had assume taxi would slow down enter the intersection at a lawful rate of speed. Primrock v. Goldenberg, 161 Minn. 200 N. W. 37 A. L. R. 484. it done Had so could have cleared the intersection before the taxi reached it. At least the jury should be permitted to determine whether, under circumstances, these the contributory negligence of Ferrari cause of proximate a, death. To give would, instruction peremptory my ignore opinion, this theory case and all of the evi- dence above detailed and would be invasion of the province of jury. Before such an instruction should given all of the be evidence of the defendants should be disregarded every reasonable inference given evidence of the plaintiff. “ a motion ‘Upon to direct a for the verdict defendant, *12 every reasonable in legitimate and fairly
ference from the arising its testimony, when entirety, considered indulged must be favorably plaintiff; court must assume as true those facts which the jury may properly find under the evidence.’ Nichols Raleigh v. Co., 85, Wyoming Coal 112 W. Va. 767.” 2, Hambrick, Point Syllabus, Spalding, Admr. v. 807. In my opinion governing rule law this case is stated in Points 2 and 3 syllabus case Henson, Burdette S. E. 37 A. L. R. 489, as follows: “2. Where the statute gives right of way
driver approaching an intersecting highway from the right left, over approaching vehicles from the not thereby is of the duty relieved to use rea- care sonable to avoid collision with such vehicles from approaching the left.” “3. And driver to from approaching the left not required way stop give vehicle in the distance coming up right, on his where he has no reason to that he can not anticipate cross intersection in safety, may assume that the other exercise will due care in approach- ing crossing the intersection.” “The fact may vehicle way street, over a public road or does not re- the operator lieve of such vehicle from the duty operate the same with care.” reasonable Point Syllabus, S. Oates, Vaughan 2dE. 479. For the reasons above stated I respectfully dissent. Company
First National et al. Mariani, Gaetano (No. 10178) Submitted February 1950. Decided March 1950.