151 W. Va. 177 | W. Va. | 1966
This is a civil action instituted in the Circuit Court of Wood County, in which the plaintiff, Elmer Ray Sydenstricker, sixty eight years of age at the time of
The plaintiff was struck and injured by the automobile driven by the defendant when the plaintiff, a pedestrian proceeding in a southerly direction, was attempting to cross Fifth Street in the City of Park-ersburg. He testified that a few minutes after midnight he arrived at the northern edge or curb of Fifth Street at its intersection with Avery Street with the intention of crossing from the north side to the south side of Fifth Street; that at the time the traffic light at the intersection controlling the traffic on Fifth Street showed green; that he waited at the northern edge of Fifth Street for a period of two or three seconds and when the traffic light changed to red he looked east on Fifth Street, south on Avery Street and west on Fifth Street and did not see any automobile or any people; that while the traffic light showed red he proceeded for a distance of eleven or twelve feet south into Fifth Street on the cross-walk at the intersection and at that location in the street the automobile struck him; that he did not see the automobile; that Fifth Street at the point of impact was thirty feet in width; that there were two west traffic lanes indicated by white lines in the northern half of Fifth Street; that when the plaintiff was struck he was in
The city policeman who assisted the plaintiff in placing him in the ambulance, produced as a witness by the plaintiff, testified that shortly before the plaintiff was injured the witness, operating his automobile west on Fifth Street, came to the intersection and stopped to await the change of the traffic light from red to green; that his automobile was directly in front of the traffic light and there were other automobiles in the rear of his automobile; that while waiting for the traffic light to change he saw the plaintiff in the act of crossing Fifth Street from the northern edge of the street; that the plaintiff had reached a point
The defendant, seventy three years old at the time of the trial, testified that he and his wife and another married couple attended a dance at the Eagles Club from shortly before 8:00 o’clock that evening until about midnight and while at the club he had drunk one bottle of beer about 8:00 o ’clock; that after leaving the club he and his wife and their guests entered the automobile of the defendant, which was parked a short distance from the club, and with the defendant driving, proceeded north on Avery Street to its intersection with Fifth Street; that his automobile was traveling in the inside traffic lane on Avery Street; that as he approached the intersection of Avery Street with Fifth Street the traffic light turned red and the defendant stopped his automobile to await the change in the traffic light; that at that time the defendant saw another automobile some distance north of the intersection
The defendant also testified that when making the left turn he looked to see whether there was anybody crossing the street on or at the cross-walk at Fifth Street and Avery Street just before he struck the plaintiff and that there was no one there; that he did not strike the plaintiff at the cross-walk at Fifth Street and Avery Street; that the place where the defendant struck the plaintiff was after the defendant “got down a ways” on Fifth Street; that the defendant did not see the plaintiff before the automobile hit him and that
At the time the plaintiff was struck the defendant and his wife were in the front seat and their guests Mr. and Mrs. Hupp were in the rear seat of the automobile. Gladys Hupp, the wife, a witness in behalf of the defendant, testified that when the automobile of the defendant turned left on Fifth Street it hit a man; that she did not see the man before the accident and the first she knew of the happening of the accident was when she heard the impact of the automobile when it struck the man; that she first saw the plaintiff when he was slumped over the hood of the automobile; that the defendant stopped his automobile immediately after the impact which occurred on Fifth Street west of the corner and in front of the pumps at the Pure Oil Station; that when the accident occurred the automobile was in the north traffic lane on Fifth Street; that the speed of the automobile at and just before the accident was not over fifteen miles per hour; and that the headlights on the automobile were burning. The husband, Wilbur Hupp, also a witness in behalf of the defendant, testified that the defendant stopped his automobile at the red light at the intersection of Fifth Street and Avery Street; that when the light turned green the automobile turned on Fifth Street and as it was traveling west on Fifth Street in the right traffic lane the plaintiff “came out” and the automobile struck him; that the witness did not see the plaintiff until the automobile struck the plaintiff and he was lying on the hood of the automobile; that the defendant stopped his automobile immediately after the impact which occurred about thirty five to forty feet west of the intersection on Fifth Street; and that the automobile immediately before the impact was traveling in the curb or north lane at a speed of ten to fifteen miles per hour.
Eoger Kent, also a witness in behalf of the defendant, testified that at the time the plaintiff was injured the witness was walking east of the intersection on the
The defendant assigns as error the action of the circuit court (1) in refusing to give Defendant’s Instruction No. 1, which would have directed the jury to return a verdict for the defendant on the grounds that the plaintiff was guilty of contributory negligence as a matter of law and that there was not sufficient evidence to warrant the submission to the jury of the question of the negligence of the defendant; (2) in giving Plaintiff’s Instruction No. 10; and (3) in refusing to give Defendant’s Instructions Nos. 9 and 11.
The defendant insists that if the defendant was guilty of negligence, which the defendant does not admit, the plaintiff was guilty of contributory negligence as a matter of law in that when he entered Fifth Street he failed to see, by looking effectively, the automobile of the defendant, and that the failure of the plaintiff to see the automobile of the defendant, which the plaintiff should have seen, caused and contributed to the injury sustained by the plaintiff. As indicated by the foregoing recital of the facts disclosed by the evidence, the evidence is conflicting as to the particu
This Court has consistently held that when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination. Pygman v. Helton, 148 W. Va. 281, 134 S. E. 2d 717; Evans v. Farmer, 148 W. Va. 142, 133 S. E. 2d 710; Dunning v. Barlow-Wisler, Inc., 148 W. Va. 206,
Many decisions of this Court also hold that it is the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses regarding them is conflicting and that the finding of the jury upon such facts will not ordinarily be disturbed by this Court. Graham v. Crist, 146 W. Va. 156, 118 S. E. 2d 640; Overton v. Fields, 145 W. Va. 797, 117 S. E. 2d 598; Lewis v. Mosorjak, 143 W. Va. 648, 104 S. E. 2d 294; Workman v. Wynne, 142 W. Va. 135, 94 S. E. 2d 665; Davis v. Sargent, 138 W. Va. 861, 78 S. E. 2d 217; Gilkerson v. Baltimore and Ohio Railroad Company, 129 W. Va. 649, 41 S. E. 2d 188; Yuncke v. Welker, 128 W. Va. 299, 36 S. E. 2d 410; Thorn v. Addison Brothers and Smith, 119 W. Va. 479, 194 S. E. 771.
This Court has also held in numerous cases that when an action for the recovery of damages for personal injuries involving conflicting testimony and circumstances upon the questions of negligence and contributory negligence has been fairly tried, under proper instructions, the verdict of the jury will not he set aside unless it is plainly contrary to the weight of the evidence, or is without any evidence to support it.
In the leading case of Deputy v. Kimmell, 73 W. Va. 595, 80 S. E. 919, 51 L.R.A., N.S. 989, Ann. Cas. 1916E 656, point 7 of the syllabus is in these words: “A person lawfully in a public highway may rely upon the exercise of reasonable care by drivers of vehicles to avoid injury. Failure to anticipate omission of such care does not render him negligent. A pedestrian is not bound, as a matter of law, to be continuously looking or listening to ascertain if automobiles or other vehicles are approaching, under penalty that if he fails to do so and is injured his own negligence will defeat recovery of damages sustained.” See also Bower v. Brannon, 141 W. Va. 435, 90 S. E. 2d 342; Davis v. Pugh, 133 W. Va. 569, 57 S. E. 2d 9; Skaff v. Dodd, 130 W. Va. 540, 44 S. E. 2d 621; Yuncke v. Welker, 128 W. Va. 299, 36 S. E. 2d 410; Walker v. Bedwinek, 114 W. Va. 100, 170 S. E. 908; Ritter v. Hicks, 102 W. Va. 541, 135 S. E. 601, 50 A.L.R. 1505. The plaintiff testified that he looked before he started to cross Fifth Street and did not see the automobile of the defendant. If he looked effectively and did not see the automobile, he was not required to continue to look while crossing Fifth Street when the light controlling traffic across that street showed green. See Walker v. Robertson, 141 W. Va. 563, 91 S. E. 2d 468; Davis v. Pugh, 133 W. Va. 569, 57 S. E. 2d 9; Yuncke v. Welker,
Under the principles enunciated in the above cited cases, the circuit court, upon the facts disclosed by the evidence did not err in submitting the question of negligence and contributory negligence to the jury, and the finding of the jury, upon such facts which, by its verdict, necessarily found that the defendant was guilty of negligence, will not be disturbed by this Court upon this appeal.
In Bower v. Brannon, 141 W. Va. 435, 90 S. E. 2d 342, the opinion contains these statements concerning the position of certain pedestrians who were struck and injured by automobiles upon the public streets and highways:
“An examination of the numerous cases decided by this Court, involving the striking of pedestrians upon a public street or highway by a motor driven vehicle, shows the importance that has been attached to the position of the person struck upon the street or highway. Those in which it has been held that the evidence of contributory negligence, barring his recovery was a matter of law for the court, are almost uniformly cases in which the pedestrian was struck at or near the curb or edge of the street or highway from which he had started to cross to the other side. * * *. In these cases, where the plaintiff was struck at or beyond the center of the street or highway, it was held that the determination of the question of contributory negligence was for the jury ;***.”
Regardless of any professional view or assumption to the contrary, there is no conflict or inconsistency in the decisions of this Court which hold, upon the particular facts, as in Brake v. Cerra, 145 W. Va. 76, 112 S. E. 2d 466, that a pedestrian who looks but fails to see a vehicle in plain view which strikes and injures him and which he should and could have seen if he had looked effectively is guilty of contributory negligence as a matter of law, and the decisions which, following the holding in Deputy v. Kimmell, 73 W. Va. 595, 80 S. E. 919, 51 L.R.A., N.S., 989, Ann. Cas. 1916E 655, hold, also upon the particular facts, as in Ritter v. Hicks, 102 W. Va. 541, 135 S. E. 501, 50 A.L.R. 1505, that a pedestrian, who looks and sees a vehicle which strikes and injures such pedestrian or, as in Walker v. Robertson, 141 W. Va. 563, 91 S. E. 2d 468, that a pedestrian, who looks but fails to see a vehicle which strikes and injures such pedestrian, is not required,
In support of his contention that the plaintiff was guilty of contributory negligence the defendant cites and relies upon the decisions of this Court in Jackson v. Cockill, 149 W. Va. 78, 138 S. E. 2d 710; Brake v. Cerra, 145 W. Va. 76, 112 S. E. 2d 466; Pritchard v. City Lines of West Virginia, Inc., 136 W. Va. 278, 66 S. E. 2d 276; Ray v. Clawson, 123 W. Va. 99, 14 S. E. 2d 259; Slater v. Shirkey, 122 W. Va. 271, 8 S. E. 2d 897; Yoder v. Charleston Transit Company, 119 W. Va. 61, 192 S. E. 349; and Milby v. Diggs, 118 W. Va. 56, 189 S. E. 107. The facts in each of those cases in which the plaintiff was held to be guilty of contributory negligence as a matter of law are clearly distinguishable from the facts in the case at bar. None of them dealt with the action of a plaintiff in crossing an intersection of a city street where traffic was regulated by traffic light signals. In the Jackson case plaintiff’s decedent at a point where the street or highway was straight for more than 1000 feet, while crossing the street and when in the third traffic lane was walking with his head down and apparently without looking in either direction, was struck by an automobile driven by the defendant at a speed of approximately twenty five miles per hour. In the Brahe case the plaintiff, after alighting from an automobile stopped in a public street about midway in a city block, walked from behind the automobile from which he had alighted into the path of an oncoming automobile, the headlights of which were burning and which was within the plain view of the plaintiff and should have been seen by him if he had looked effectively. In the Pritchard case the plaintiff, after having alighted from a bus, stepped on a public street; attempted to cross the street in front of an oncoming automobile in plain view and which he
The defendant complains of the action of the circuit court in giving Plaintfiff’s Instruction No. 10 which, after stating the duty of an operator of a motor vehicle upon a public highway to keep and maintain a proper lookout, told the jury that if they believed certain stated facts by a preponderance of the evidence the jury could find the defendant guilty of negligence and which, in stating the duty of the defendant to keep and maintain a proper lookout, referred to other persons lawfully upon and using such public highway.
The action of the circuit court in refusing to give Defendant’s Instruction No. 9 and Defendant’s Instruction No. 11, also complained of by the defendant, did not constitute prejudicial error. Defendant’s Instruction No. 9 was substantially covered by Defendant’s Instruction No. 4 which, without objection, was given by the circuit court. Duplication of instructions is unnecessary and undesirable. Morgan v. Price, 151 W. Va. 158, 150 S. E. 2d 897; Walker v. Monongahela Power Company, 147 W. Va. 825, 131 S. E. 2d 736; Butler v. Smith’s Transfer Corporation, 147 W. Va. 402, 128 S. E. 2d 32; Graham v. Wriston, 146 W. Va. 484, 120 S. E. 2d 713; State v. Cirullo, 142 W. Va. 56, 93 S. E. 2d 526, and the numerous cases cited in the opinion in that case. Defendant’s Instruction No. 11
The judgment of the Circuit Court of Wood County is affirmed.
Affirmed.