Foard v. Harwood

I am unable to concur in the decision of this case.

The action of a trial judge in setting aside a verdict and awarding a new trial is entitled to the very highest consideration, and such action should not be reversed by an appellate court unless it appears that the judge was plainly wrong and that obviously there was prejudicial error. "A judgment awarding a new trial of an action will not be reversed unless it is manifestly erroneous." Wilson v. Fleming, 89 W. Va. 553,109 S.E. 810. In Nutter v. Salem, 110 W. Va. 180,157 S.E. 592, 593, the Court made the following observation: "The trial court was in much better situation in determining that the ends of justice would be served by a new trial than the appellate court because the trial court saw the demeanor of the witnesses and their manner of giving evidence, and whether partial or fair * * *. 'It is an important principle that the revising court should have the same lights, and act upon the same data, as the inferior court.' " Other pertinent cases:Haggar v. Transport Co., 106 W. Va. 522, 146 S.E. 49; Vaughan v. Hospital, 103 W. Va. 156, 136 S.E. 837; Reynolds v.Tompkins, 23 W. Va. 229; and Miller v. Insurance Co., 12 W. Va. 116. A controlling thought underlying all of these cases is that such an order of the trial court does not involve final disposition of the case. The order goes no further than to require the parties to re-try their case to the end that complete justice may be done.

In my judgment the high requirements necessary for this Court properly to reverse an order of a trial court in granting a new trial do not exist in this case.

It was, of course, the trial judge's duty to weigh the case in its whole aspect when called upon to consider a motion for a new trial — not primarily as to whether some technical rule of procedure had been violated, but whether justice had been done by the verdict. I think the trial court would have been fully warranted in reaching the conclusion that the defendant was unquestionably guilty of negligence and that there was no appreciable evidence tending to establish contributory negligence of the plaintiff. If the plaintiff was contributorily negligent (on no other theory could she be denied recovery), it was because she did not protest to the defendant against the manner of his driving. To apply that doctrine here seems to me to carry judicial sanction of "back seat driving" beyond the point of reason and propriety. In such cases as Clise v. Prunty, 112 W. Va. 181, 163 S.E. 864, Herold v. Clendennen, 111 W. Va. 121, 161 S.E. 21, and Adams v.Hutchinson, 113 W. Va. 217, 167 S.E. 135, where there was full opportunity and ample time for the guest to protest against a manner of driving which presently resulted in disaster, the guest's failure to protest very properly bars his right to damages in case of injury. But where time must be measured by the fraction of a second, as in the case at bar, a protest of a guest may be just as apt to accentuate the danger of the situation as to ameliorate it.

With all possible deference to my brethren, it is my view that the court is reversing this case on a matter of secondary importance and is ignoring the more important phases of the case.

Therefore, I respectfully dissent.