Biddle v. Haddix, 13004

• Decision Date: 30 March 1971
• Docket Number: No. 13004,13004
• Citation: 179 S.E.2d 215,154 W.Va. 748
• Court: West Virginia Supreme Court
• Parties: James Lewis BIDDLE, an Infant, etc., v. William H. HADDIX and State Farm Mutual Automobile Insurance Company.

Page 215

179 S.E.2d 215

154 W.Va. 748

James Lewis BIDDLE, an Infant, etc., v. William H. HADDIX and State Farm Mutual Automobile Insurance Company.

No. 13004.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1971.

Decided Feb. 23, 1971.

Rehearing Denied March 30, 1971.

Syllabus by the Court

1. 'In a personal injury action, issues involving primary negligence on the part of the defendants, contributory negligence on the part of the plaintiff, due care and proximate cause are proper for determination by the jury when the evidence pertaining to such issues is conflicting, involving credibility of witnesses, or where the evidence, though undisputed or without conflict, is such that reasonable men may properly draw different conclusions from it.' Point 1 Syllabus, Poe v. Pittman, 150 W.Va. 179 (144 S.E.2d 671).

2. 'Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages.' Point 4 Syllabus, Richmond v. Campbell, 148 W.Va. 595 (136 S.E.2d 877).

3. In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict.

Herschel Rose, James D. Nash, Jr., Fairmont, for appellant.

R. Michael Tatterson, Fairmont, for appellees.

CALHOUN, Judge:

This case, on appeal from a final judgment of the Circuit Court of Marion County, involves a civil action for recovery of damages for personal injuries sustained on December 31, 1967, by James Lewis Biddle, an infant, when he was struck by a panel truck owned and operated by William H. Haddix, the defendant, on a secondary public road in Marion County. James Lewis Biddle will be referred to in this opinion as the plaintiff.

The jury trial, held in early December, 1969, resulted in a verdict for $500 in favor of the plaintiff. From a judgment entered on that verdict, the plaintiff has been granted the appeal to this Court. Subsequently he was granted leave to move to reverse the judgment of the trial court. In these circumstances, the case was submitted for decision upon the original record and upon typewritten briefs and oral argument of counsel for the respective parties.

The defendant paid to the parents of the plaintiff the sum of $1,386, representing the amount of hospital and medical bills incurred in the treatment of the plaintiff, and this fact appeared without objection as a part of the testimony before the jury.

The case was submitted to the jury for decision on the issues of the primary negligence of the defendant, the contributory negligence of the plaintiff, and the amount of damages, if any, which the plaintiff was entitled to recover.

The assignments of error asserted in behalf of the plaintiff in his petition for an appeal are as follows:

1. The trial court erred in overruling the plaintiff's motion to set aside the verdict and judgment and to award the plaintiff a new trial on the single issue of damages in accordance with the provisions of Rule 59(a), R.C.P.

2. The trial court erred in overruling the plaintiff's motion to set aside the verdict and judgment and to award him a new trial on all issues.

3. The trial court erred in refusing to sustain the motion of the plaintiff for a mistrial on the ground that the defendant, while testifying as a witness in the presence of the jury, made a statement which indicated that he was not covered by liability insurance which would afford him protection against the claim of the plaintiff.

4. The trial court erred in giving and in reading to the jury two instructions tendered in behalf of the defendant. This objection was not seriously relied upon in this Court and apparently has been deliberately abandoned.

In his brief, counsel for the plaintiff asserts additionally that the trial court erred in not directing a verdict in favor of the plaintiff on the single issue of liability.

We are of the opinion that, from all the evidence, the question of the defendant's liability, involving the issue of the defendant's primary negligence as the proximate cause of the accident, and involving the issue of the plaintiff's contributory negligence presented a proper case for the jury.

William H. Haddix, the defendant, called by the plaintiff as an adverse witness, testified that, on the day in question, he left his home about six o'clock in the evening alone in his panel truck in order to go to a certain store located approximately five miles from his home for the purpose of making certain purchases; that the accident occurred during the course of his return to his home; that his travel to and from the store required about thirty minutes 'each way'; that he remained at the store about fifteen or twenty minutes; that, during the course of the return trip, he 'picked up' a neighbor named Russell Goodwin who continued as a passenger in the defendant's truck to the scene of the accident; that, at the time of the accident, it was snowing and that, as a consequence, the road was covered with snow one-half to three-fourths of an inch in depth; that the road had been 'plowed two or three times' previously with the result that nine or ten inches of snow was piled on each side of the road; that the road from the defendant's home to and from the store 'was slick all the way through', and that, when he left home to go to the store, he 'knew the road was slippery'; that the headlights of his truck were lighted as he approached the scene of the accident; that the falling snow did not impair or lessen visibility; that he could 'probably see 100 feet, more or less' ahead of his truck; that when he arrived at a certain point in the highway, he saw two children in the road about forty feet ahead of his truck, who, according to the undisputed evidence, were Jo Ann Biddle and Eugene Biddle, brother and sister, and cousins of the plaintiff, the three having been 'sled riding' on the road in the area where the accident occurred immediately prior to the time of the occurrence of the accident.

The defendant testified further that, when he first saw the two Biddle children, they were more or less to the defendant's right-hand side on the 'plowed portion' of the road; that, when he first saw the two children, he 'shoved the brake instantly', whereupon the rear end of his truck 'slid more or less to the left'; and that thereupon the front end of the truck went across the snow bank on the right side of the road.

It is undisputed that the effect of the impact was to pin the defendant, in a fallen position, against the end of a culvert which was placed under a private driveway leading to a nearby home. The truck came to rest with one of the front wheels on the plaintiff's right leg. At the request of the children, the defendant backed his vehicle so as to free the plaintiff's leg. The defendant testified further that his truck proceeded approximately twenty feet 'through the piled-up snow' before it struck the plaintiff and came to rest. When asked whether the accident resulted from his fault, the defendant replied: 'I was driving the vehicle, so I guess you'd have to say it was mine, that's about the only thing I can say.'

The three Biddle children testified in behalf of the plaintiff. Their testimony, concerning the circumstances under which the accident occurred, was substantially the same as that of the defendant.

Jo Ann Biddle testified that 'it wasn't dark yet' at the time the accident occurred; that the three children were on the right-hand side of the 'plowed' portion of the road and that, when they saw the defendant's truck approaching, they hurried farther to the right 'off the road' and 'over the snow pile.' In that connection, she further testified: '* * * he was coming right toward us, so we took off running. * * *. When we seen he'd hit Jimmy, we was off the road, and that's all.' She testified that the 'plowed portion' of the road was of sufficient width 'for two cars to pass.'

Eugene Biddle testified substantially to the same effect as his sister, Jo Ann. When asked what the plaintiff did as 'the truck came through the snow bank,' he replied that the plaintiff fell, that he got up and turned around to see where the truck was and at that time the truck struck the plaintiff and pinned him against the culvert. He testified that, after the truck backed off the plaintiff's leg, the plaintiff got out of the ditch and tried to stand up but that he fell again; that the father of the Biddle sister and brother was summoned to the scene, that he arrived 'a couple minutes' later and that the plaintiff then 'was still laying right beside the ditch.'

James Lewis Biddle, the plaintiff, testified that he was sixteen years of age at the time of the trial; that the defendant's truck 'went sideways' as it approached; that he and the two other children were then 'in the deeper snow on the side' of the 'plowed portion' of the highway and that they proceeded 'over into the deep snow'; that he turned around and fell, and 'by the time I got back up again, he had me against the culvert'; that he 'fell in the ditch' near the culvert; and that he tried to get up and walk after he was struck but he was unable to do so and again fell. The evidence is undisputed that the plaintiff was still lying on the ground when the father of the plaintiff's two cousins came to the scene, picked up the plaintiff and took him to a nearby home of people named Conner.

Russell Goodwin, a witness for the defendant, testified that he traveled with the defendant as a passenger in his truck for a distance of...