Aliff v. Berryman, (No. 6948)

• Decision Date: 22 September 1931
• Docket Number: (No. 6948)
• Court: West Virginia Supreme Court
• Parties: C. L. Aliff, Admr., Etc. v. C. H Berryman

111 W.Va. 103

C. L. Aliff, Admr., Etc.

v.C. H Berryman

(No. 6948)

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1931.

Decided September 22, 1931.

1. Appeal and Error

If there is conflict of testimony on a material point, or if reasonably fair minded men may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependant upon the weight to be given to the testimony, in all such cases the verdict of the jury is final and conclusive and cannot be disturbed by either the trial court or the appellate court.

2. Same

Ordinarily a finding of fact by a jury on conflicting evidence is binding on an appellate court unless unsupported by the evidence or against a plain preponderance thereof.

3. Automobiles

The vigilance and care required of the operator of an automobile vary in respect of persons of different ages or physical conditions. He must increase his exertions in order to avoid danger to children, whom he may see, or, by the exercise of reasonable care, should see, on or near the highway. More than ordinary care is required in such cases, and the younger the child and the less able he is to look out for himself, the greater the care which may reasonably be exacted of those operating dangerous agencies in the streets to avoid injuring or killing him.

4. Same

A driver is not bound to anticipate that a child will suddenly dart from the side of the street, but, if at a designated place there is anything to challenge his attention and warn him that he should expect heedless acts, it is his duty to avoid, if possible, an accident.

5. Trials

Instructions need not be repeated. It is not ordinarily error for a trial court to refuse an instruction the substance of which is covered by another instruction given.

Woods, Judge, absent.

Error to Circuit Court, Mercer County.

Action by C. L. Aliff, administrator of the estate of Georgia Ann Aliff, deceased, against C. II. Berryman. Judgment for the plaintiff, and the defendant brings error.

Affirmed.

Sanders, Crockett, Fox & Sanders, for plaintiff in error. Jerome Katz and Russell S. Ritz, for defendant in error.

Maxwell, Judge:

This writ of error brings up for review a judgment of the circuit court of Mercer County for $3,766.00 based on a verdict in favor of the plaintiff and against the defendant for the alleged wrongful death of plaintiff's decedent, Georgia Ann Aliff, a little girl not quite six years of age. The child was struck and killed in Highland Avenue of the city of Bluefield by a delivery truck of the defendant in control of his employee, James McClure. The truck was proceeding in a westerly direction on a slight descent. A large moving van facing west was parked at the curb in front of the Aliff home on the north side of the street.

McClure says that he was driving at about the rate of 18 to 20 miles per hour; that the child suddenly stepped out from behind the opposite end of the van and immediately in the path of his truck; that he applied the brakes forthwith; that the child then seemed to hesitate in its course and was instantly struck by the front of the truck. No one else saw the actual impact, except Rosalyn Witt and J. S. Sloan, and they were unable to say what was the direction of the child's movements just before it was struck. Their attention was attracted from where they were sitting on the front porch of the Witt home when they heard the noise from the application of the brakes, and the child was then closely in front of the truck. But there is testimony that the child was seen on the south side of the street just before the accident. Mrs. Witt had seen the child and talked with it on the sidewalk in front of her home on the south side of the street, diagonally opposite in an easterly direction from the Aliff home, some three or four minutes before the accident. The accident occurred a little to the west of the entrance of the Aliff home. C. W. Parker who was driving a light truck eastward on Highland Avenue testifies that he saw a little child (not definitely identified by him as the child that was killed) at about the point where the accident presently occurred upon or near the south curb; that after he had proceeded a little ways he met the oncoming truck of the defendant; that when he had proceeded about seventyfive feet eastward from the point where he saw the child he heard in his rear the noise of quick application of brakes on a moving motor vehicle; that he looked around and saw that the child had been struck and was lying in the street. Parker and Sloan estimated the speed of defendant's truck just prior to the accident at 25 to 30 miles per hour.

Should full credence be given to the explanation of the driver of the defendant's truck as to how the accident occurred, or should the circumstances as testified to by witnesses for the plaintiff, and as appear from the whole case, be deemed as preponderating on the theory that the accident did not happen as the truck driver explains? It was a jury question. If the jury believed from the evidence that the accident did not happen in the manner that the truck driver says it did, then they were further warranted by the evidence in believing that there was a sufficiently open view to enable him to avoid striking the child if he had been in the exercise of reasonable and ordinary care. It follows that the first point of error, involving the sufficiency of the evidence, is not well taken. '' If there is conflict of testimony on a material point, or if reasonably fair minded men may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependant upon the weight to be given to the testimony, in all such cases the verdict of the jury is final and conclusive and cannot be disturbed either by the trial court or by the appellate court.'' Railroad Go. v. Wheeler, 147 Va. 1; 132 S. E. 698.

The second point of error goes to plaintiff's instruction No. 1. By it the court told the jury that the operator of an automobile or truck on a public thoroughfare must increase his exertions in order to avert danger to children whom he may see or by the exercise of reasonable diligence should see near the highway; that their lack of capacity to apprehend and guard against dangers makes such care and caution necessary; that if the jury believed from the evidence that the deceased child was standing on or near the curb or the edge of the paved portion of the city street and while...