DocketNumber: 12130
Citation Numbers: 126 S.E.2d 187, 147 W. Va. 168, 1962 W. Va. LEXIS 18
Judges: Browning, Calhoun
Filed Date: 6/26/1962
Status: Precedential
Modified Date: 11/16/2024
These two actions for wrongful death arise out of an automobile accident which occurred at approximately 3:00 A.M. on March 18, 1958, in the village of Ireland, Lewis County, West Virginia. By agreement of the parties the cases were consolidated for trial and the following facts were stipulated. The automobile, owned by defendant’s decedent, Onslow Haymond Rastle, hereinafter referred to as defendant, and occupied by Rastle and plaintiffs’ decedents, Clarence Spaur and Dennis B. Siers, hereinafter referred to as plaintiffs, was proceeding in a southerly direction along U. S. Route 19 when it left the highway in or near a right-hand curve, went off the east or driver’s left-hand side of the road and struck a tree, demolishing the automobile and killing all three occupants. All of the decedents were licensed automobile operators and the automobile involved had been purchased by Rastle from Spaur approximately one month previous to the accident. There were no eye witnesses.
The case was tried in November, 1960, 32 months after the accident, and, owing to vagueness of the description of the physical facts as they appeared after the accident it will be necessary to quote the testimony of the 'various witnesses as to the petinent details at some length. Mrs. Julia Crawford, in answer to a question as to the position of the bodies with respect to the wrecked automobile, stated: ‘ “. . . This Spaur boy was lying on the road, I would say, six to ten feet behind the body of the car. I ráised his head in my hand, and he gasped his last gasp in my hand. Then I saw Onslow [Rastle] who was hanging out of the car or with his head and arms down. That part was out of the car, and part was —• as I remember it — of couise, it was an excitable time. That is howl recollect. Then the Siers boy was lying full length in the car still breathing.” On cross-
Mr. Paul Loudin, with reference to the positions of the bodies, stated: “The Spaur boy was south of the rest. As well as I remember, the Rastle boy was on the other side of the car or parts of the car, I should say. As well as I remember, one of them was on the northern side of this car or parts of it, and the other one was on the southern side. As to how many feet away, I couldn’t say.” He was then examined as follows: “Q. Where was the Siers boy found? A. He was found lying on the seat of the car. Q. Which seat? A. I couldn’t tell you sir. Q. Concerning the Rastle boy do you recall any more of a particular description of where he was found? A. He was lying over part of the car —a piece of tin, I should say. I don’t know exactly what part it was. One foot was up over — well, it was about this much of his body [indicating the head and shoulders] lying on the ground.” On cross-examination, the witness testified: “Q. Now the Siers boy was in the wreckage of the car? A. He was lying on a seat. Yes, sir. Q. But the car was so torn up you couldn’t tell whether it was the front or back seat? A. After when I put my light down in there, and he was still breathing, all I thought about was getting him to the hospital. Q. The seat part of the car where the Siers boy was lying had been thrown out, hadn’t it? A. I couldn’t say. It was in the mangle of —. Q. Of the wreckage? A. Wreckage, yes. It was in that. ... A. Yes, sir. The frame and so forth, the part of the body. I don’t remember of even seeing that. Now, this one here— of course, I looked down into this here wreckage here and found the Siers boy. . . . Q. And it [Rastle’s body] was lying down over on top of a piece of metal? A. Part of it, yes. Q. There wasn’t anything on top of his body? A. Not on top of his body, no. Q. Now, where you found the Rastle boy’s body was some distance from the part of the wreckage in which you found the Siers boy’s body? A. No, not too much distance, no,
Mr. Null, who arrived at the scene after the Siers boy had been removed, testified: “. . . Q. Clarence Spaur was on the berm? A. Yes, on the berm. Q. Was that on the Ireland [north] or the Braxton [south] side of the tree? A. I remember him as being on the Ireland side of the tree. Your picture on your display would show the other side, but I remember him as laying on the Ireland side. He wasn’t far from the car. Q. What was the position of the Rastle boy? A. He was in the wreckage of the car when I saw him on the road side of the tree. Q. Could you determine what portion of the wreckage he was in? A. Well, from the looks of the car, I should say, it was the front end, and the front part of the car. The car was tom up so bad it was hard to tell one end from the other, for that matter, when I first saw it. Q. Do you recall the position of the car or the part of the car that the Rastle boy was in; in what position was it? A. Well, as near as I can tell it was mashed. The frame had been wrapped around the tree, and the wrecked part of the car, parts of it, were strung all over. It was such a mess it would be hard to tell. Q. Were you present when the Rastle boy was removed from the wreckage? A. Yes. Q. Who removed him. A. This Alva Alkire and myself. ... Q. Do you recall how he was removed from the car? A. The only thing I recall that this wreckage was — just reached down in the wreckage and pulled him up out. Alkire, when we got him — what of him was intact — one leg was severed, and Alkire got this one leg out, as I remember it. Q. Did you and Alkire together lift the body out, or just who lifted the body out of the car? A. As I remember it, Alkire and I both lifted the main part of the body out. Q. In what manner did you find the body in the wreckage? ... A. Well,
D. A. Lucas, apparently a police officer, testified that: he investigated the accident; the left side of the car hit the tree, approximately at the center; there were tire marks, indicating skidding, beginning on the berm on the left-hand side of the highway and continuing one hundred sixty feet, eight inches, to the right-hand side of the car as it stood next to the tree; the car was mainly torn into two parts, the frame being next to the tree and the top and right-hand doors, and other parts, being approximately twelve to thirteen feet away; the motor was thirty-three feet down the highway; and, only the rear part of the front seat remained in the frame of the car. Mr. Skinner testified that the tree which the automobile hit was a locust, eighteen inches in circumference, which was split and leaning slightly to the south after the accident.
At the conclusion of plaintiffs’ case, the trial, court, on motion of the defendant, directed a verdict in favor of the
In passing upon the question whether a verdict should have been directed for the defendant, the question is whether there was any evidence upon which a verdict for the plaintiffs might properly be found. It is well established in this State that: “Before directing a verdict in defendant’s favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.” Fielder v. Service Cab Co., 122 W. Va. 522, 11 S. E. 2d 115. It has also been held that even though there is no controversy concerning the actual facts, if different inferences may be drawn therefrom, submission to a jury is required. American Tel. & Tel. Co. v. Ohio Valley Sand Co., 131 W. Va. 736, 50 S. E. 2d 884. In applying these rules to the instant case two issues are presented, one, whether the plaintiffs have adduced sufficient evidence to raise a jury question as to negligence, and, two, whether such evidence is sufficient to show that the defendant might he properly charged with such negligence so that a verdict against him would not be set aside on that ground.
As to the first issue, the uncontradicted evidence of the plaintiffs shows that the automobile in which the defendant and the two plaintiffs were proceeding veered to its left at the inception of a right-hand curve, crossed the opposite lane of traffic to the berm on the left side of the highway and thereafter skidded one hundred sixty feet where it struck a tree with such force as to separate the frame from the body of the automobile, and completely demolish it. A legitimate inference from such facts, if not the only one, is that the operator of the automobile was guilty of negligence in any one or more of these ways: in failing to properly observe the road before him; in failing to maintain proper control of the automobile; or in traveling at an excessive speed under the circumstances. In the case of Reilley v. Byard, 146
The question as to whether there has been a prima facie showing that the defendant was the operator of the automobile at the time of the accident is more difficult. As heretofore pointed out, the witness Null places the body of the Spaur boy at a location in conflict with that described by the other witnesses. However, all of the witnesses place the defendant’s body as the one nearest the frame of the automobile and lying on, or hanging out of, the wreckage of the body of the automobile near the left front door. The evidence is uncontradicted that the middle of the car, on the left side, struck the tree. It might be said that the defendant was the most seriously injured, though all died, in that one of his legs was completely severed, and from this fact it might be inferred that such severance occurred by reason of his position as driver of the automobile and in close, and confined, proximity to the operating mechanisms thereof. In addition, defendant was the owner of the automobile. It is true that such evidence is only circumstantial. But, as was said in Webb v. Harrison, 127 W. Va. 124, 129, 31 S. E. 2d 686, “This type of evidence [circumstantial] has often been held competent and adequate in negligence cases. In an action for wrongful death by an automobile accident, the
Upon careful analysis of this record we are of the opinion that the evidence of the plaintiffs, when all reasonable inferences are drawn in plaintiffs’ favor, and all facts favorable to plaintiffs are assumed as true, was sufficient to present a question for jury determination. It was, therefore, reversible error for the trial court to take the case from the jury by directing it to return a verdict for the defendant at the end of plaintiffs’ case. The judgment of the Circuit Court of Lewis County is reversed and the case is remanded for a new trial.
It has been strongly urged by counsel for plaintiffs that the doctrine of res ipsa loquitur is applicable to the instant case and also that this Court should indulge in the presumption that the owner of a motor vehicle, if an occupant, was the driver thereof at the time of an accident. However, in view of the decision that plaintiffs have established a prima facie case, it is both unnecessary and inadvisable to comment on these points at the present time and such questions are specifically reserved until presented to the Court in a proper case.
Reversed and remanded.