Abdulla v. Pittsburgh & Weirton Bus Co., No. 13469

• Court: Supreme Court of West Virginia
• Writing for the Court: HADEN; BERRY; BERRY
• Citation: 158 W.Va. 592,89 A.L.R.3d 994,213 S.E.2d 810
• Parties: , 89 A.L.R.3d 994 Ali ABDULLA v. PITTSBURGH AND WEIRTON BUS CO., etc.
• Docket Number: No. 13469
• Decision Date: 25 March 1975

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213 S.E.2d 810 158 W.Va. 592, 89 A.L.R.3d 994 Ali ABDULLA
v.
PITTSBURGH AND WEIRTON BUS CO., etc. No. 13469. Supreme Court of Appeals of West Virginia. March 25, 1975.

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Syllabus by the Court

1. Except as qualified by Rule 81 of the West Virginia Rules of Civil Procedure, Rule 1 extends applicability to appellate review[158 W.Va. 593] conducted by a trial court of record; and when an appellant has moved seasonably for appropriate relief under Rules 50(b), 52(b) or 59, the appeal time is extended by Rule 72 and commences to run from the entry of the order granting or denying such motions.

2. Although a common carrier is not an insurer of its passengers' safety, where the fare-paying relationship exists, the carrier owes the passenger the duty to use the highest degree of care compatible with the practical operation of a vehicle.

3. A carrier of passengers cannot excuse the slightest negligence on its part, resulting in injury to a passenger, by showing concurrent negligence of another agency, contributing to or immediately causing the injury because any showing of negligence on the part of the carrier which proximately contributes to a passenger's injuries is actionable.

4. The mere showing that a passenger sustained injury while passively riding in a vehicle operated by a common carrier raises a Prima facie case of negligence precluding a directed verdict at the close of the passenger's

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case in chief; but where the carrier adduces substantial and credible rebuttal evidence, the presumption dissipates and, on motion for directed verdict, the sufficiency of proof is to be judged by weighing all the evidence with due regard to the high standard of care required of common carriers.

5. Where the evidence of negligence is conflicting or where the evidence is undisputed but different conclusions may be drawn therefrom, the question of liability is for jury determination.

6. 'An instruction which tends to mislead the jury is erroneous and should be refused.' Syllabus point 19., Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726 (1962).

7. 'Although a court is required to instruct or charge a jury on every important theory of claim or defense supported by the evidence of the case, the court is not bound thereby to charge the jury in the exact language proffered by a party's instruction. [158 W.Va. 594] Within the constraints of fairly presenting all parties' conflicting theories, the court is authorized by Code 1931, 56--6--19 to deviate from the language of proffered instructions so as to effect an ordered and logically connected charge to the jury.' Syllabus point 2., Parker v. Knowlton Construction Company, Inc., W.Va., 210 S.E.2d 918 (1975).

8. A charge to the jury must be considered in relation to the whole case, and if it is apparent that mere technical errors in instructions could not have misled the jury, such errors will be treated as surplusage and harmless to the efficacy of the verdict.

9. A party who is surprised by unfavorable testimony given by his witness may interrogate the witness as to his previous inconsistent statements to the extent permitted by the sound discretion of the trial court.

10. The reasonableness of cost and necessity for hospital care and medical treatment may be established through the testimony of any qualified physician who is familiar with the plaintiff's medical condition at the time of treatment and who is knowledgeable of hospital and medical costs in the locality.

11. Although an injured party bears the burden of proving damages with proper evidence since a negligent party cannot be held to respond in compensatory damages for that which was not the proximate result of his tort, the admissibility of a hospital bill, as an item of special damages, which is minimally tainted by extraneous charges, is addressed to the sound discretion of the trial court.

12. A court is under no duty to charge a jury on an issue irrelevant to the case. Consequently, where the injured party has not attempted to prove permanent injury and the trial court's charge merely permits the jury to consider awards for medical bills, loss of earnings, and pain and suffering, the judgment entered upon the verdict will not be reversed because the court refused an instruction negativing permanent injury.

[158 W.Va. 595] 13. Whether counsel's improper reference to amounts sued for, as compared with damages proven by competent evidence, is to be regarded as prejudicial error must be judged in light of competent evidence of damages adduced and the trial court's admonition to the jury that statements of counsel were not to be considered as evidence.

14. 'A jury is better able to judge of the circumstances of a case, the weight of the testimony, and the peculiar hardships and aggravations attendant upon an injury, and its verdict for damages for personal injury, which is not so excessive as to indicate, as a matter of law, passion, prejudice, partiality, mistake, or lack of due consideration, will not be set aside by this Court on that ground.' Syllabus, Williams v. Penn Line Service, Inc., 147 W.Va. 195, 126 S.E.2d 384 (1962).

Donell, De La Mater & Hagg, W. Dean De La Mater, Weirton, for appellant.

E. A. Zagula, Weirton, for appellee.

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HADEN, Chief Justice:

This is an appeal by Pittsburgh and Weirton Bus Company, a corporation, from the final judgment of the Circuit Court of Hancock County, affirming the judgment of the Common Pleas Court of Hancock County in the amount of $20,000.00 entered in favor of Ali Abdulla. The common pleas jury awarded Abdulla a verdict in [158 W.Va. 596] the amount of $27,500.00 but the trial court's judgment reflected a deduction of $7,500.00, a Pro tanto settlement previously obtained from a joint tort-feasor, George Neurohr. See, Hardin v. New York Central R. Co., 145 W.Va. 676, 116 S.E.2d 697 (1960).

This action arose out of a motor vehicle accident occurring on July 10, 1963, in Weirton, West Virginia, at the intersection of Pennsylvania Avenue, Main Street and County Road. The vehicles involved in the collision were a bus owned and operated by the appellant as a common carrier and an automobile operated by the released party, George Neurohr, who was also an original defendant in the civil action. The appellee, a passenger in the bus at the time of the accident, brought this action for injuries sustained by him when he was thrown forward at the time the collision occurred.

The undisputed evidence in this case reveals that the bus, proceeding along Pennsylvania Avenue in a westerly direction, had stopped for the purpose of receiving and discharging passengers in the right lane of Pennsylvania Avenue, a two-lane street west, at or near Penn-Way Pharmacy which was located approximately seventy-five feet east of the intersection where the accident occurred. The Neurohr automobile, likewise proceeding in a westerly direction along Pennsylvania Avenue, approached the bus from the rear in the same lane of Pennsylvania Avenue. Observing that the bus was stopped and that the traffic signal at the intersection was green, Neurohr testified that he drove his automobile into the center lane of traffic to go around the bus and then proceeded into the intersection where he intended, and thereafter attempted, to execute a right turn north onto County Road. Within the same approximate time-frame, the bus resumed its journey and moved forward toward its westerly travels to Main Street and beyond. The collision occurred when both vehicles occupied the same space at the same time.

As is typical in such cases, many of the material facts relevant to the collision were in conflict. The position of [158 W.Va. 597] the bus while stopped was variously fixed by the witnesses at from seventy-five feet from the point of collision, to approximately fifty feet, to just a 'few' or 'two' feet. The relative positions of the vehicles at the time the bus resumed movement was, likewise, in dispute, as were the relative speeds of the vehicles prior to and at the time of impact.

With regard to Abdulla's injuries, his testimony that he was thrown forward in the bus when the collision occurred and 'switched' his back, was essentially unassailed by the defense. The extent of the resulting injuries, and more particularly, his subjective complaints of pain and suffering and resulting inability to work and perform other strenuous activities, although not directly controverted by defense witnesses, came under close scrutiny during vigorous cross-examination. Essentially, however, it was established that the plaintiff had sustained a low back strain or sprain, causing intermittent pain and discomfort resulting in certain physical limitations which, when coupled with osteoarthritic changes in his spine, gradually, but seriously, diminished his capacity to labor in the steel mill. His injuries, pain and suffering and declining physical condition, dating from the approximate time of the accident until just shortly before the trial of this matter, were supported by the employer and medical testimony.

In addition to the trauma caused by the bus-car accident, medical examination for the back injury also revealed that Abdulla had contracted diabetes. The indiscriminate admission of special damages relating to treatment of appellant's diabetic condition into the proof of damages in the case

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provides the foundation for a significant issue presented in this appeal.

Ali Abdulla raises a threshold issue which must be resolved before the bus company's assignments may be considered on their merits. On the premise that the West Virginia Rules of Civil Procedure do not apply to proceedings in which a circuit court functions as an intermediate appellate court, the appellee cross-assigns error [158 W.Va. 598] in the granting of this appeal. Although conceding that appellant prosecuted his appeal to the circuit court within four months from the date of the trial court's...