*1 agent process could serve for his in principal while employ. exclude, full-time example, This would for employee part-time full-time firm duties law whose be the might serving processes for the firm. Then to take the next and step final would be to hold that no agent, part-time, full-time or could a process serve This, his employer. would, in its reasoning, ultimate effect, all exclude process except servers perhaps sheriff; process every server is agent person he serves process. whom therefore,
I would, hold process service in this case was valid and would discharge the writ.
I am authorized say Judge Berry joins dissent.
Roy Lee Thomas Ramey Ramey Lewis United States of America 13106)
(No. September 12, Submitted 1972. Decided October 1972. Dissenting Opinion December *2 File, Jr., for Bowers, File, Payne, & H. Hodson W. appellant. Kennedy,
Thornhill, David T. Kennedy Vaughan, & appellee. Judge:
Kessel, Court in the Circuit instituted This civil action was Ramey Louise against Thomas Lee Raleigh County by Roy husband, damages to recover and Lewis her by sustained pain suffering personal injuries, him which by contracted plaintiff, expenses and medical an automobile by struck being were occasioned by he was Ramey while operated owned Prior to the Beckley. Heber crossing city Street Ramey trial of was dismissed the case Lewis permitted America defendant and the United States intervene, having paid, on behalf incurred as result of hospital expenses medical and case, trial of the plaintiff’s Upon injuries. circuit the defendant. The
returned verdict favor of court, January order on set aside by an entered be granted and ordered that the jury verdict that an to this appeal new trial. It is from this order *3 granted. Court was Thomas, below plaintiff this Lee the opinion Roy here, plaintiff;
and to as the appellee the will be referred intervenor; America be referred to as United States of will and appellant and Louise the defendant below the Court, in defendant. this will be referred to as in Court presented The for decision this question sole jury is aside the whether the trial court should have set propriety and trial. The granted verdict the new necessarily regard of the trial court’s action in this involves a determination of the trial court should whether Plaintiff’s Instruction No. which is as given have “THE JURY that under the follows: IS INSTRUCTED in in favor law and evidence this case verdict must be your Thomas, intervenor, of the Lee and the the plaintiff, Roy America, defendant, against United States of and the trial Ramey.” give The court refused on instruction and submitted case to the the jury the of defendant and primary negligence the of the question negligence of the After the contributory plaintiff. jury defendant, verdict in was returned favor plaintiff and intervenor moved the court set aside (1) verdict for the contrary reasons that: the verdict was evidence; (2) to the refusing law and court erred in 1; (3) Plaintiff’s Instruction No. and the court erred giving F Defendant’s Instructions Nos. The court I. held in its order setting aside the verdict jury granting a refusing new trial that it had erred in Plaintiff’s Instruction 1 and in giving No. Defendant’s Instructions E, I, Nos. F and which instructed respect with contributory negligence. If the was not guilty a matter contributory of law and the defendant wás guilty primary negligence as matter of law, then Plaintiff’s Instruction No. 1 should have been read to the jury.
The place accident took at the intersection of Prince and Heber Streets in the city Beckley. Heber Street ais one-way street with lanes of two traffic and one lane on parking right side, its going way the traffic. Heber passes Street by the courthouse and ends at the point it intersects with Prince no light Street. There was intersection, regulating at the but there a stop sign, which was situated on hand side street, proceeds traffic, as one with the and on the other side of the street sign was a indicating Heber Street was a street. There one-way was a marked walkway pedestrians across Heber point Street at the it intersected with Prince Street. army who was at the time and was
engaged in recruiting people for army stationed in Beckley, testified that going he was to the *4 Armed Forces Examining Station when he approached the intersection and Prince Heber Streets. The automobile traffic on Heber Street would have been from coming his left. He further stated that before starting Street, to cross Heber crosswalk, at the marked he looked both ways traffic, traffic. no Seeing the plaintiff stated that proceeded he to and, cross the street when he was within about steps reaching two the opposite side street, noticed, his eye, out of the corner of car to his left. Almost simultaneously impact he felt the the car on left leg. his He he did not car said see the prior to that time but have if looked. He could he had further testified that I off he “assumed that warded car, or put my out hand it was instinctively, because little sore in the wrist.” from Plaintiff was not knocked feet proceeded and on across the street.
After spending defendant, a short time with the during which “exchanged information in to they regard names and forth,” so plaintiff to the went Armed Forces Station, Examining Herrara, where Dr. Ansel and Dr. army time, that physicians who were the station at examined him and go hospital. advised him The plaintiff “I said that at that had pain time across lower back, part of the and it rather and excruciating pain, it seemed I like the time I down got feeling there was real my nauseated at pain.” stomach from the stated, further “I very noticed a little in the soreness wrist, I can probably assume this resulted when tried to ward the car off stuck out.” my hand Dr. Ansel’s examination of revealed evidence of redness along the left left upper leg. side defendant, testified prior that accident she was in her on Heber proceeding automobile Street. As approached she of Heber Street the intersection Street, with car Prince she behind another stopped traffic; left car in lane of front of her “pulled left”; out and went to the “pulled to where the up she car had car, been” her for traffic stopped waiting to go by. right, There was for traffic to but lane her there were no cars in it.
On cross-examination the defendant testified as follows: “Q Now, coming him you say you when he was saw out the curb on the hand side? Yes,
A I was at him crossed the sir. as he street. *5 way him all the
Q Well, follow Ramey, you did Mrs. your eyes? across the street with across, and then when him he came I looked at A car, my front of I about to leave the saw he was if cars, I looked to see there was right in front the two again. back from and then coming right, any Q all Well, at him the if were you Mrs. why pulled reason you across the street is there way left? your out he cleared car on the before on out, I let Apparently up I sir. pull A didn’t very slowly, walking Mr. Thomas slightly. brake just I thought than and took cross the street longer to would.
Q way all the across your But he had come in vision lanes, lane, lane, other parking the two clear car, hand almost over to your gotten side —left
A Yes.
Q All in line of your vision. Yes,
A sir.
Q up And then let and came you forward. I I
A let but did not on the up, push gas. Q I that. say up your didn’t let car say you- went forward. Yes,
A sir.” applicable City Beckley ordinances of the are as
follows:
“Sec. 13-1. Definitions.
“Crosswalk, (a) ‘Crosswalk’ part means that of a at roadway an intersection included within the connections of the lateral lines of the on opposite sidewalks sides of or, the street measured from the curbs the absence curbs, edges of the traversable roadway. roadway ‘Crosswalk’ of a any portion also means an intersection indicated for distinctly elsewhere pedestrian on crossing markings lines or other surface.” *6 — crosswalks; Right
“Sec. 13-111. of way when and pass vehicle drivers not to overtake stopped at vehicles crosswalks.
“ (a) signals When traffic control are not in or place not in a operation the driver of yield vehicle shall the way, of down or if need slowing stopping yield, be so a pedestrian crossing the within a crosswalk roadway when the is of pedestrian upon the half the roadway upon which the traveling, vehicle is or the pedestrian when is approaching closely opposite so the half of the be roadway danger, pedestrian as to but no shall suddenly leave curb or other of place and walk or safety run into path of vehicle is so which close it is impossible for the This yield. provision driver to shall not (b) under the conditions apply stated subsection of section 13-112.
“(b) any stopped Whenever vehicle is aat marked crosswalk unmarked at an crosswalk intersection permit pedestrian to cross the roadway, driver of any other vehicle from the shall approaching rear not 1958, (Code 3, overtake and such pass stopped pt. vehicle. ” 9, 71, #2.) ch. art. Should the trial court have given preemptory instruction tendered by designated as Plaintiff’s Instruction No. 1? “Though ordinarily the questions negligence of and contributory negligence are jury, material undisputed when the facts are one only inference be drawn from them may by minds, reasonable of questions negligence are contributory questions law for the McIntire, 117, 120, Lewis 150 144 court.” v. W.Va. S.E.2d Kellas, 319, 619, Petros See 146 122 W.Va. S.E.2d 177; Crist, 156, Graham v. 146 118 640; W.Va. S.E.2d Cerra, 76, 466; Brake v. 145 112 S.E.2d W.Va. Workman v. 198
Wynne, 135, 665, many 94 S.E.2d and the cases W.Va. point cited in the In the opinion. Workman sixth Preston Coke v. Preston syllabus County Company 231, and Power County Light Company, 146 W.Va. 420, evidence, S.E.2d this Court held as follows: “When whole, uncontradicted though conflicting as embraces the case to turn in facts circumstances which cause one of so that a verdict adverse to such parties favor of stand, can not court should direct a verdict in party his favor.” Court, Kingdon, in the case of Ritz v. 139 W.Va.
189,
in point
syllabus
79 S.E.2d
stated
24 of the
that a
“verdict
is
evidence to
it or
support
which
without
is
against
the clear
preponderance
conflicting evidence
will,
motion,
on proper
be
aside
the court.”
set
See
Norton,
In Bank
Frye
148 W.Va.
preponderates instruct the party it is to return for him. a verdict On motion for a directed verdict court should be the action be if a guided by what its would verdict and a opposite party should be returned the motion to made set aside the verdict.” Woods, 297, See Blain v. 145 115 W.Va. S.E.2d case, Heber the instant the crossed Street approaching a marked The automobile traffic crosswalk. ordinance, the by city the crosswalk was well required to a right way pedestrian stop sign, yield as the crossing by slowing down within crosswalk upon is stopping, necessary, pedestrian if when the traveling half the vehicle is roadway upon which from the approaching closely or is so pedestrian when the danger. to be in The roadway half opposite and, bring stop upon looking, did her car to defendant to cross the crosswalk and in fact start saw street. Her crossing only him all the time he was saw longer he took she hit him was that why as to explanation he thought to cross the street than she would. left all
The that didn’t look to his plaintiff admits as he was approaching the time to see if there was traffic this, He not to do and no crossing required the street. is failure negligence can be to him imputed to do so. He had a that vehicular assume the marked would approaching comply crosswalk with city ordinance.governing such traffic. “ person lawfully public may ‘A highway
rely upon by exercise of reasonable care drivers of vehicles to Failure injury. avoid anticipate omission of such does not render care bound, negligent. him A as a pedestrian is not law, matter of to be continuously listening to ascertain if automobiles or other vehicles if approaching, are under penalty injured he fails to do so and is will defeat Point 595.” his own recovery sustained.’ damages Kimmell, syllabus, Deputy 73 W.Va. Sydenstricker Vannoy, 151 W.Va. 150S.E.2d Point Syllabus. At struck, the time the plaintiff was he was within steps two of reaching the curb. undisputed The evidence discloses that the plaintiff was struck the left front portion of the defendant’s automobile. We are of the opinion law, plaintiff, as matter of not negligent. contributorily
We must address ourselves to the issue of whether defendant was guilty negligence. If primary she was not, defendant, then the jury verdict proper. evidence, to her according uncontroverted, own *8 the plaintiff saw from the time he from the coming was curb on her right hand side and him was as he crossed the street. As she that saw he was about to leave car, the front end of her says she she looked to the to see if there was and then coming looked back again. Then she let on her apparently up brake “just slightly”, thinking getting street, across the passing car; the front of her but as she 200
said,
longer
he
and “took
walking very slowly
He was
thought
cross the street” than she
would.
him all
time.
all
and
saw
within her vision
the time
she
her
as to
judgment
It
appears to have been mistake
had come
when
start her car forward. She
she should
required by
city
to a
at the marked crosswalk as
stop
ordinance,
pedestrian crossing
but she did not
to the
yield
She violated
roadway within the crosswalk.
ordinance
facie evidence of
city
prima
to the
negligence,
According
which was not controverted.
case,
of
the defendant’s
facts
circumstances
city
admitted and uncontroverted
violation
proximate
ordinance was the natural and
cause of
is, therefore,
guilty
to the
and she
injury
as a matter of
Court has
primary negligence
law. This
held in
cases
of a
many
that “The violation
statute
an
is prima
ordinance
facie actionable
it
negligence when
an
proximate
is the natural and
cause of
Lewis
injury.”
McIntire,
117, pt. Syl.,
v.
150
3
Plaintiff’s Instruction No. 1 given should have been and it E, follows Defendant’s F Instructions Nos. and should not have been given.
For reasons stated in opinion, judgment the Circuit Court of Raleigh County is affirmed.
Affirmed. Berry, Judge, dissenting:
I dissent from the wherein it holds majority opinion plaintiff that the was not guilty contributory as a matter of law. am of the matter opinion contributory negligence of the is a for question jury determination. The defendant’s automobile was either stopped moving at slowly an intersection and the plaintiff walked across street front of automobile. The plaintiff stated not was aware of the defendant’s car it time until struck him. It duty to use due care safety own and under the circumstances in the case at bar it appear would that this matter Perfetti, Shaw determine. 147 W.Va. 125 S.E.2d 778.
Judge joins Haden in this dissent. Joseph Re: a Member J. Berzito, Virginia West Bar State 13225)
(No. Submitted 1972. October September Decided