Adkins v. Minton

• Decision Date: 29 November 1966
• Docket Number: No. 12547,12547
• Citation: 151 S.E.2d 295,151 W.Va. 229
• Court: West Virginia Supreme Court
• Parties: Causbia ADKINS v. Paul MINTON and Logan Baking Corporation, a corporation.

Page 295

151 S.E.2d 295

151 W.Va. 229

Causbia ADKINS v. Paul MINTON and Logan Baking Corporation, a corporation.

No. 12547.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1966.

Decided Nov. 29, 1966.

Syllabus by the Court

1. Code, 17C--8--8, as amended, provides that not only should an appropriate signal be given by a person making a turning movement to warn other traffic that may be affected thereby, but, also, that any such turning movement made by a vehicle from a direct course upon a roadway shall not be done unless and until such movement can be made with reasonable safety.

2. The driver of a forward vehicle attempting to make a left turn into a passing lane must not only given a proper turning signal, as required by the statute, but in addition, must ascertain if it can be done with safety before making such turning movement, which is also a requirement of the statute.

3. Code, 17C--7--3(a), as amended, requires the driver of a vehicle overtaking and passing another vehicle proceeding in the same direction to give an audible signal and pass on the left thereof at a safe distance.

4. Code, 17C--15--35, as amended, requires every motor vehicle so constructed or loaded as to obstruct the driver's view to the rear to be equipped with a mirror so located as to allow the driver of any vehicle to be able to view the highway from the rear of such vehicle for a distance of 200 feet.

5. If the driver of a forward vehicle making a left turn into a passing lane saw an overtaking vehicle attempting to pass before making the turn and still turned into the left, or passing, lane, and an accident resulted, such driver of the forward or turning vehicle would be guilty of negligence as a matter of law; or if such driver of a forward vehicle looked to the rear when an overtaking vehicle was attempting to pass and did not see the overtaking vehicle, such driver of the overtaken vehicle did not look effectively, which is a requisite in such cases, and would still be guilty of negligence as a matter of law. However, if such driver of the overtaken vehicle had looked effectively and had seen the approaching vehicle before the actual attempt to pass was being executed and made a judgment that a left turn could be made with safety and had done so and been struck by the passing vehicle, it would result in a question for jury determination as to negligence and contributory negligence of the respective drivers of the two vehicles.

6. The driver of a vehicle overtaking and passing another vehicle proceeding in the same direction on a public highway is required only to give an audible signal and exercise ordinary care under the circumstances and is not required to ascertain whether the driver of the vehicle in front has heard the audible signal, and is not required to exercise a high degree of care to ascertain if the forward vehicle can be passed in safety.

7. "Ordinarily, when contributory negligence of the plaintiff is relied on as a defense, it is prejudicial error to give for the plaintiff an instruction which directs the jury to find for the plaintiff if certain recited facts are believed by the jury from the evidence, but which instruction does not specifically negative contributory negligence on the part of the plaintiff. The error involved in the giving of such erroneous instruction is not corrected by the giving to the jury of other instructions covering contributory negligence. Nichols v. Raleigh Wyoming Mining Co., 113 W.Va. 631, Pt. 1, Syl., 169 S.E. 451." Syl. Bragg v. Whitten Transfer Co., 125 W.Va. 722, 26 S.E.2d 217.

8. It is prejudicial error to give a binding instruction to the jury instructing the jury that if it finds from certain facts that the defendant was guilty of negligence which proximately caused the injury to the plaintiff 'who was herself free of negligence' and the verdict must be for the plaintiff. Such quoted statement does not specifically negative contributory negligence on the part of the plaintiff.

9. If an objection is made to an instruction as originally offered assigning grounds therefor and objection is again made to the instruction as amended, all of the grounds not having been eliminated, it is not necessary to repeat the grounds of objection to the instruction.

10. '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.' Pt. 6, syllabus, Leftwich v. Wesco Corp., 146 W.Va. 196, 119 S.E.2d 401.

11. It is prejudicial error to give an instruction to the jury telling the jury that the burden of proving contributory negligence is upon the defendant and that the plaintiff is presumed to have been exercising due care and to have been free of contributory negligence until proven otherwise by the defendant, which completely omits any statement that the jury may consider all the evidence offered by both the plaintiff and defendant and all the circumstances in determining whether or not the plaintiff was guilty of contributory negligence.

Valentine & Valentine, Mark T. Valentine, John C. Valentine, Logan, for appellants.

Preiser & Greene, W. Dale Greene, Charleston, for appellee.

BERRY, Judge:

This is a civil action instituted by the plaintiff, Causbia Adkins, in the Circuit Court of Logan County, West Virginia, against Paul Minton and the Logan Baking Corporation, a Corporation, for damages for personal injuries received by the plaintiff in an automobile accident which occurred on Route 10 in Logan County on March 12, 1962. The jury returned a verdict in favor of the plaintiff in the amount of $15,000, and the trial court entered judgment thereon June 26, 1964, and on May 29, 1965, entered the final order overruling the motion of the defendants to set aside the verdict and to enter judgment for the defendants in accordance with the motion for a directed verdict made at the conclusion of all the evidence, and in the alternative to set aside the verdict and judgment and to grant the defendants a new trial. On January 24, 1966, an appeal and supersedeas were granted to said judgment and the case was submitted to this Court on arguments and briefs September 21, 1966.

Both vehicles involved in this collision were panel body trucks and the collision occurred when the plaintiff attempted to turn to the left of the road while defendant was passing. The vehicle driven by the plaintiff who was a woman of small stature, her height being 4 feet 11 3/4 inches, was a 1952 Ford truck equipped with bucket seats. The truck was used by her to pick up dry cleaning and laundry for a dry cleaning company. The passing vehicle, which was driven by Paul Minton, one of the defendants, was a 1960 Dodge panel body truck used for the delivery of bakery products. Both trucks were proceeding toward Logan and the wreck occurred at a point on the highway which is bounded on one side by the Guyan River and on the other by the Chesapeake and Ohio Railway tracks in a stretch known as the 'Three Mile Curve.' The weather condition on the day of the wreck was clear and the pavement dry and in this stretch of the highway, as is shown by the record, it was possible to see in both directions for several hundred feet. The defendant Minton unquestionably saw the plaintiff ahead of him when he decided to pass, but she did not see him behind her until he hit her when she was making the turn across the road to the left berm, the reason being the relatively simple one, according to her own admission and confirmed by other witnesses, that she had no rear view mirrors on the truck, and that she was not aware of the defendant's truck on the highway.

There is a direct conflict in the testimony with regard to the giving or not giving of signals. The plaintiff stated that defendant Minton did not sound his horn before attempting to pass, but that she gave a signal for a left turn for 150 to 200 feet, a distance of more than 100 feet as required by the statute. The defendant Minton testified that plaintiff gave no signal but that he sounded his horn on three or four occasions while he was relatively close to the plaintiff's truck, moved to the left side, and blew it again when she 'lurched' to the left side also. There were no witnesses to the accident other than the plaintiff and the defendant Minton, who stated that just about the time the front of his truck was even with the rear of the plaintiff's truck, she 'shot across' in front of him into the passing lane he was in, and in an effort to avoid hitting the plaintiff's truck he tried to cut back over to the right, at which time the plaintiff's truck was angled across the left, or passing, lane. Despite this effort to avoid the collision, the left front of defendant's truck struck the left rear of the plaintiff's truck, apparently giving it extra momentum, so that it swerved diagonally off the road and hit a tree with considerable force. The plaintiff was rendered unconscious and received a broken leg as a result of the impact.

The accident occurred about 4 o'clock in the afternoon and an ambulance arrived about fifteen or twenty minutes later and transported the plaintiff to a hospital. She had apparently regained consciousness before the ambulance left with her.

Immediately before the accident, the plaintiff was intending to make her last pick-up for the day and the customer lived in one of the houses across the river from the highway near a dilapidated bridge known as 'Wellman Bridge'. It was her custom to park the truck she was driving in a wide place on the highway berm from which the bridge crossed the river. She was thus in the process of attempting to park the truck on the left hand side...