Addair v. Bryant

Decision Date17 November 1981
Docket NumberNo. 14746,14746
Citation284 S.E.2d 374,168 W.Va. 306
CourtWest Virginia Supreme Court
PartiesJarves ADDAIR, Admr., etc. v. Arnold BRYANT, et al. Cathy BALLENGEE, Admx., etc. v. Arnold BRYANT, et al.

Syllabus by the Court

1. The making of a left turn into a passing lane or across oncoming traffic is one of the most dangerous movements a vehicle can make on the highway, and the driver of a vehicle making such movement must ascertain if it can be done with reasonable safety.

2. "Contributory negligence on the part of the plaintiff is an affirmative defense. There is a presumption of ordinary care in favor of the plaintiff, and where the defendant relies upon contributory negligence, the burden of proof rests upon the defendant to show such negligence unless it is disclosed by the plaintiff's evidence or may be fairly inferred by all of the evidence and circumstances surrounding the case." Syllabus Point 6, Leftwich v. Wesco Corporation, 146 W.Va. 196, 119 S.E.2d 401 (1961), overruled on other grounds, Bradley v. Appalachian Power Company, W.Va., 256 S.E.2d 879 (1979).

3. "Under the West Virginia wrongful death statute a dependent distributee may be one who is partially dependent upon the deceased for services and may recover for pecuniary loss within the limits under the statute." Syllabus Point 2, Salerno v. Manchin, W.Va., 213 S.E.2d 805 (1974).

4. Evidence of the remarriage of a surviving spouse, or the possibility of such remarriage, ordinarily is not admissible to mitigate damages in a wrongful death action.

5. While a specific foundation need not initially be made to impeach a witness with a prior inconsistent statement, the witness must be informed of the general nature of his prior inconsistent statement, and be afforded the opportunity to explain or deny the same. There is also a right, if requested, on the part of his counsel to see any prior written statement or to have disclosed the contents of a prior inconsistent oral statement during the course of interrogation. All of the above is subject to the sound discretion of the trial court.

6. Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived.

Tutwiler, Crockett, LaCaria & Murensky and Charles A. Tutwiler, Welch, for appellants.

Ballard & Brumfield and G. David Brumfield, Welch, Hostler & Shinaberry and Sterl F. Shinaberry, Charleston, for appellees.

MILLER, Justice:

Arnold Bryant and Leander Lester, (defendants), appeal from jury verdicts rendered against them in two wrongful death actions tried in the Circuit Court of McDowell County. Their primary allegations of error are: (1) that the trial court incorrectly refused their instruction on contributory negligence; and (2) that the trial court also erred in not permitting defendants to introduce, for purposes of mitigating the damage claim, evidence that the wife of one of the plaintiffs' decedents had remarried. Certain other errors are asserted as to evidentiary matters and complaint is made that the verdicts are excessive. For the reasons more fully stated below, we affirm the trial court's judgment.

The accident giving rise to this litigation occurred on March 24, 1973, on a public highway in McDowell County. At the time of the accident, defendant Bryant, who was employed by the defendant Lester, was operating a truck owned by Lester and acting in the scope of his employment, which was the delivery of mail. In the process of delivering mail to the Paynesville Post Office, Bryant had to make a lefthand turn across the highway to reach the parking lot in front of the post office.

The highway in front of the post office was two lanes and was curved in the nature of an "S." The post office was located in about the middle of the "S" curve. There is a dispute in the evidence as to the sharpness of the "S" curve. It appears from the evidence that from the first curve below the post office Bryant could see the road going by the post office to the second curve, and this distance is approximately 300 feet.

Defendant was driving south and had driven through the first curve, but had not reached a position opposite the post office when he started to make his left turn. Thus, the turn was angled across the highway toward his destination. Bryant slowed his truck, but did not bring it to a complete stop. He then put on his left-turn signal and reduced his gear ratio from 4th to 3rd gear. He looked ahead on the highway, saw no oncoming traffic and proceeded to make his left turn. As defendant drove into the opposite lane, he observed a motorcycle traveling toward him and estimated its distance at perhaps 125 feet. At this point, his truck had the entire opposite lane blocked; in an attempt to avoid the accident, Bryant increased the speed of his truck to pull it off the highway.

Bryant lost sight of the motorcycle as he attempted to get his truck completely off the highway, but felt the jolt of the motorcycle as it struck the truck. Both individuals on the motorcycle were thrown off and killed. The accident occurred at approximately 2:00 p. m. on a clear, sunny day.

A Mr. Sexton was the only other person able to see any part of the accident. His deposition was read to the jury by agreement of counsel. Sexton was behind Bryant's truck some 500 to 1000 feet. His vision of the highway ahead of Bryant's truck was obscured by the truck bed which was van-like in nature. He saw the truck start its left turn across the highway, but did not see the motorcycle approaching. Sexton then saw the motorcycle as it struck off the right rear corner of the truck, throwing its two passengers into the air.

A Trooper Ryan investigated the accident scene. He noted the presence of marks and scratches on the right rear portion of the truck. Ryan also observed that the motorcycle and its riders had come to rest on the same side of the highway as the truck, but north of it.

I.

This case was tried in 1979 prior to the modification of our contributory negligence rule in Bradley v. Appalachian Power Company, W.Va., 256 S.E.2d 879 (1979). The trial court was of the view that the defendants were not entitled to an instruction on contributory negligence because there was no evidence of any contributory negligence on the part of the person operating the motorcycle. The primary basis for this ruling was that no witness at trial had testified that the motorcycle was traveling in excess of the speed limit.

It is important to remember that Bryant's angled turn across the highway toward the post office parking lot was a left turn across the highway. In Adkins v. Minton, 151 W.Va. 229, 236, 151 S.E.2d 295, 301 (1966), we commented on a left turn across a highway between intersections:

"It has been held that the making of a left turn into a passing lane or across oncoming traffic is the most dangerous movement a vehicle can make on the highway, and the driver of a vehicle making such movement must ascertain if it can be done with safety."

In Adkins we also referred to W.Va.Code, 17C-8-8(a), which requires that no person shall "turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety." 1

This imposition of a higher degree of care when making a left turn is generally recognized by other courts, although the phrasing of the rule may be different. 2 Some courts recognize that a high degree of care must be exercised, but regard this as another way of stating that reasonable care "means care commensurate with the apparent danger." Green v. Boney, 233 S.C. 49, 56, 103 S.E.2d 732, 735 (1958). In Blaisdell v. Reid, 352 A.2d 756 (Me.1976), the court made this statement in regard to a driver making a left turn across the highway:

"[A] demand for extraordinary care and caution is by no means unreasonable in view of the hazard inherent in crossing a lane that is being used by oncoming traffic where no traffic controls are present." 352 A.2d at 759.

The Nebraska court in Petersen v. Schneider, 153 Neb. 815, 46 N.W.2d 355 (1951), modified, 154 Neb. 303, 47 N.W.2d 863, echoed much the same statement made in our Adkins case, supra : "The most dangerous movement on public streets or highways is the left-hand turn." 153 Neb. at 819, 46 N.W.2d at 358. E. g., Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516 (1951); Bond v. Jack, 387 So.2d 613 (La.App.1980); Facianne v. Greene, 379 So.2d 847 (La.App.1980); Jacobs v. Kimbrough, 376 So.2d 1273 (La.App.1979); Esponette v. Wiseman, 130 Me. 297, 155 A. 650 (1953). See also Rowedder v. Rose, 188 Neb. 664, 199 N.W.2d 18 (1972); Keller v. Wellensiek, 186 Neb. 201, 181 N.W.2d 854 (1970); Kruger v. Ervin Clark Const. Co., 166 Neb. 252, 88 N.W.2d 778 (1958); Berbohn v. Pinkerton, 208 Okla. 242, 255 P.2d 260 (1953).

We believe the trial court was correct in rejecting the defendant's contention that he was entitled to a contributory negligence instruction. Ordinarily, questions of negligence and contributory negligence are matters for the jury under proper instructions. Reilley v. Byard, 146 W.Va. 292, 119 S.E.2d 650 (1961); Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953). We have also recognized that proof of such defenses as contributory negligence rests with the defendant, stating the rule in Syllabus Point 6 of Leftwich v. Wesco Corporation, 146 W.Va. 196, 119 S.E.2d 401 (1961), overruled on other grounds, Bradley v. Appalachian Power Company, W.Va., 256 S.E.2d 879 (1979):

"Contributory negligence on the part of the plaintiff is an affirmative defense. There is a presumption of ordinary care in favor of the plaintiff, and where the defendant relies upon contributory negligence, the burden of proof rests upon the defendant to show such negligence unless it is disclosed by the plaintiff's evidence or may be fairly inferred by all of the evidence and circumstances surrounding the case." 3

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