131 S.E.2d 736 (W.Va. 1963), 12192, Walker v. Monongahela Power Co.

Docket Nº12192.
Citation131 S.E.2d 736, 147 W.Va. 825
Opinion JudgeCAPLAN, Judge.
Party NameRaymond Fred WALKER v. MONONGAHELA POWER COMPANY, a Corporation, and Okey Floyd.
AttorneyErnest R. Bell, Russell L. Furbee, Fairmont, Charles D. Bell, Wellsburg, for appellants. Pietranton & Alpert, Frank A. Pietranton, Weirton, Paul E. Parker, Jr., Fairmont, for appellee.
Case DateJuly 09, 1963
CourtSupreme Court of Appeals of West Virginia

Page 736

131 S.E.2d 736 (W.Va. 1963)

147 W.Va. 825

Raymond Fred WALKER

v.

MONONGAHELA POWER COMPANY, a Corporation, and Okey Floyd.

No. 12192.

Supreme Court of Appeals of West Virginia.

July 9, 1963

Submitted May 7, 1963.

Page 737

Syllabus by the Court

1. 'An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, [147 W.Va. 826] unless the verdict is against the plain preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118 W.Va. 421, 91 S.E. 550.

2. 'When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it.' Point 4, Syllabus, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894.

3. In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.

4. The refusal to give an abstract instruction is not reversible error.

5. An instruction which incorrectly states the law should be refused.

6. 'A trial court may properly refuse instructions based upon immaterial and non-probative facts incidentally revealed on the trial of an issue.' Point 5, Syllabus, Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100.

7. The refusal to instruct on a point already sufficiently covered by other correct instructions given does not constitute reversible error.

Ernest R. Bell, Russell L. Furbee, Fairmont, Charles D. Bell, Wellsburg, for appellants.

Pietranton & Alpert, Frank A. Pietranton, Weirton, Paul E. Parker, Jr., Fairmont, for appellee.

Page 738

[147 W.Va. 827] CAPLAN, Judge.

This civil action was instituted in the Circuit Court of Marion County on June 9, 1961, by the plaintiff, Raymond Fred Walker, to recover from the defendants, Monongahela Power Company, a corporation, and Okey Floyd, an employee of said company, damages for personal injuries sustained by the plaintiff as a result of a collision between the vehicle driven by the plaintiff and the vehicle of the defendant company. At the time of the collision the defendant's vehicle was being driven by Okey Floyd. The plaintiff charges that the negligent conduct of the defendants was the proximate cause of his injuries and in his complaint seeks to recover damages in the sum of one hundred thousand dollars.

Upon the trial of this case the court overruled the defendants' motion for a directed verdict and the jury returned a verdict for the plaintiff and against both defendants in the amount of thirty five thousand four hundred dollars. The circuit court entered judgment on the verdict and subsequently overruled a motion of the defendants for a new trial. To that judgment the defendants prosecute this appeal.

The collision in which the plaintiff was injured occurred at about 9:00 A.M. on June 1, 1960, on United States Highway Route No. 22. This highway is commonly known as Freedom Way and is within the corporate limits of the City of Weirton, extending in a westerly direction to the bridge which leads to Steubenville, Ohio. The evidence is conflicting as to the markings upon and along this highway and as to the manner in which the accident occurred.

The plaintiff alleges that at the time and upon the date aforesaid he was driving his motorcycle in a westerly direction along Freedom Way; that he was traveling on the righthand side of the highway at a speed of twenty to twenty five miles per hour and in a careful and prudent manner. The plaintiff further says that when he was approximately twelve or thirteen hundred feet along Freedom Way from the intersection of U.S. Route No. 22 and State Route No. 2 he noticed the defendant company's truck in front of him, [147 W.Va. 828] traveling in the same direction and at approximately the same speed. The plaintiff testified that he followed the truck for a short distance and, seeing that the highway was straight and unobstructed, decided to pass; that he followed at a safe distance and, upon determining that he could pass safely, sounded his horn and proceeded to overtake the company's truck. He testified that as he was overtaking the truck and was almost parallel with it, the truck began to make a left turn; that he pulled to the left in an effort to avoid the accident but was unsuccessful and the collision occurred. According to the plaintiff's testimony, the defendant Floyd did not stop prior to making a left turn, nor was any visible signal given to indicate that such left turn would be made.

The evidence of the defendants reveals that on the morning aforesaid a line crew of the defendant company, consisting of the foreman, the driver, and four other employees, was traveling in a westerly direction along Freedom Way in a line truck driven by the defendant Okey Floyd; that they were proceeding along this road for the purpose of making certain repairs on pole 24, which was the property of the defendant company; that Freedom Way was a three lane highway, one lane being reserved for westbound traffic and two lanes for traffic going east; that said lane in which the company's truck was traveling was separated from the two eastbound lanes by solid double white lines; that four or five automobiles were following the company truck at the time it approached the vicinity of pole 24; that the defendant driver, prior to making a left turn, came to a complete stop at the extreme lefthand portion of the single lane, at which time two or three vehicles passed on his right side; that he looked into his rear view mirror and, seeing no vehicles, turned left at about a forty five degree angle and at

Page 739

a speed of three to four miles per hour; and that when he was in the eastbound lanes he heard a noise and felt a thud, which he later discovered was the collision between his vehicle and that of the plaintiff. The defendant Floyd testified that he did not hear any signal by the plaintiff indicating that plaintiff intended to pass his vehicle. He also testified that a approximately six hundred feet east of pole 24 he turned on his automatic directional signal, indicating that [147 W.Va. 829] he was going to make a lefthand turn. Floyd stated that the first time he saw the plaintiff or the motorcycle was after the accident when he got out of the truck and saw them on the ground.

The principal defense having been premised on the allegation that Freedom Way, from its intersection with State Route No. 2 to the bridge was, on June 1, 1960, a no passing zone and that the plaintiff attempted to pass in violation of the law, it is essential to consider in detail the markings upon and along that highway. The following description of Freedom Way is based upon the evidence adduced at the trial and relates to the time of the accident.

Freedom Way is a strip of highway approximately thirty two hundred feet in length. It is a straight road and, except for a slight rise in one portion thereof, the view of the entire length is unobstructed. This road has a blacktop surface and is thirty feet in width. It is contended by the defendants that Freedom Way is a three lane highway and that the one lane designated for westbound traffic is separated for its entire length from the two eastbound lanes by solid double white lines. The presence of the double white lines is disputed and will hereinafter be more fully considered. Testimony on behalf of the defendants also indicates the presence of Do Not Pass signs for westbound traffic, one at the intersection of Freedom Way and State Route No. 2, one about five hundred feet farther west, and another 'just before you cross the slight rise'. The presence of Do Not Pass signs is generally admitted, but there is some conflict in the evidence as to the number of such signs east of pole 24.

The State Road Commission is authorized by statute to designate a particular portion of a highway as a no passing zone. This may be accomplished in either of two ways, by appropriate signs or by markings on the roadway. Code, 1931, 17C-7-7, as amended. Regardless of the number of Do Not Pass signs, it is uncontradicted that the last such sign east of pole 24 was located just before the rise in the elevation of the road, a distance of some fourteen hundred to fifteen hundred feet from the scene of the accident. It is [147 W.Va. 830] important to note here that the aforesaid code section does not place any mandatory duty on the road commission to designate the end of a no passing zone.

The grounds of error assigned by the defendants may be summarized as follows: (1) The verdict is contrary to the law and evidence; (2) the plaintiff was guilty of negligence that proximately caused and proximately contributed to the injuries complained of, barring recovery by him against the defendants; (3) the negligence of the plaintiff concurred with the negligence of the defendant, if any, proximately causing and contributing to his injuries, barring a recovery on his part; (4) the verdict is excessive, appearing to have been given under the influence of passion, prejudice, partiality, misconception of the evidence or lack of due consideration; (5) the evidence gives rise to no duty owed to the plaintiff by the defendants which the defendants breached, inasmuch as the record fails to show in any way that the defendants, or either of them, knew of the presence of the plaintiff, and of his violation of law; (6) the refusal by the trial court to give to the jury certain instructions offered by the defendants; (7) the giving by...

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