Black v. Peerless Elite Laundry Co.

• Decision Date: 25 April 1933
• Docket Number: (No. 7507)
• Court: West Virginia Supreme Court
• Parties: I. G. Black, Administrator, etc. v. Peerless Elite LaundryCompany

113 W.Va. 828

I. G. Black, Administrator, etc.

v.Peerless Elite Laundry

Company

(No. 7507)

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1933.

Decided April 25, 1933.

(Rehearing denied June 9, 1933)

1. Appeal and Erroe

"This court will not consider errors predicated upon the abuse of counsel of the privilege of argument, unless it appears that the complaining party asked for and was refused an instruction to the jury to disregard the improper remarks, and duly excepted to such refusal." McCullough v. Clark, 88 W. Va. 22. 106 S. E. 61, Pt. 6, Syl.

2. Trial

"Improper remarks by counsel during trial and in the presence of the jury are not cause for reversal, if the jury were properly instructed to disregard them, and the court is unable to see that substantial prejudice resulted." Roberts v. United Fuel Gas Co., 84 W. Va. 368, 99 S. E. 549; Moorefield v. Lewis, 96 W. Va. 112, 116, 123 S. E. 564.

3. Death

"In action to recover for wrongful death, the jury are not limited to mere pecuniary damages, but may allow for mental anguish and suffering of near relatives of deceased, who are his distributees." Wigal v. City of Parkersburg, 74 W. Va. 25, 81 S. E. 554, Pt. 6, Syl.

4. Damages

The verdict of a jury in an action for death by wrongful act will not be set aside for excessiveness, "unless the verdict be the result of passion, prejudice, partiality or corruption on the part of the jury." Thomas v. Electrical Co., 54 W. Va. 395, 46 S. E. 217, Pt. 10, Syl.

Litz, Judge, absent.

Error to Circuit Court, Cabell County.

Action by I. G. Black, administrator of Glen Giles Black, deceased, against the Peerless Elite Laundry Company. To review an adverse judgment, defendant brings error.

Affirmed.

Fitzpatrick, Brown & Davis, for plaintiff in error. Lilly & Lilly, for defendant in error.

Kenna, Judge:

This writ of error was awarded to a judgment of the circuit court of Cabell County entered the 8th day of August, 1932, upon a previous verdict of a jury for $10,000.00 for death by wrongful act. The defendant's truck struck and killed Glen Giles Black, an infant, in Gallaher Street, in the City of Huntington, on the morning of August 31, 1931.

I. G. Black, the father, left his home in Gallaher Street, Huntington, in a Ford touring car at about nine o'clock on the morning of August 31, 1931. He was driving and seated beside him on the front seat was his son, Cecil Black, age 16. In the back seat on the left was Lloyd Black, age 18. Glen Giles Black, a few days less than four years and nine months old, was seated on the right of the back seat. The purpose of the trip was to take Lloyd to a doctor in town. They traveled north toward the Ohio river a distance of approximately 450 feet. Here they stopped on the east side of the street against the curb and opposite the Stewart store. Some of the testimony tends to show that the purpose of this stop was to enable the father to get a check cashed at the Stewart store and to permit the little boy to buy candy there. It is stated that the purpose was then for the little boy to return home by himself, the others continuing into Huntington. Lloyd Black testified that Cecil was getting out of the front seat and getting into the back with him and that Glen got out and went around back of the car and into the street about seven feet from the curb, where he stopped. The width of the Black ear was testified to as five and one-half feet. This put the child between one foot and eighteen inches beyond its outer edge. There is other testimony to the effect that he was but six feet from the curb. The width of the street is proven to have been nineteen and one-half feet. Either of these positions therefore would leave the child east of the middle of the street. The father testified that he had his hand on the door handle to his left preparing to get out; that he did not know the little boy had gotten out of the automobile; that he saw the approaching truck and looked around and saw the child standing apparently waiting for the truck to pass; that he was afraid to take a chance getting out because the truck was coming so fast; that he saw the boy standing in the street before the truck hit him and he saw the truck strike him; that the truck was traveling approximately 30 or 35 miles an hour. He says that it did not slow up as it passed his car, and that the Chevrolet truck, which was traveling south, when the brakes were applied made skid marks beginning about five feet south of his car and about six feet out from the curb on the side his car was parked, thus placing the truck almost exactly in the middle of the street. There were no cars on the street other than the Black car and the truck within a distance of several hundred feet. The vision was unobstructed. The testimony of Cecil Black was substantially the same. He says that he did not see his little brother at the time he was struck; that he knew he had gotten out of the back of the car and gone around behind it, and a second after they parked he saw the Chevrolet truck coming about 150 feet away. He estimates its speed at about 35 miles an hour. There is testimony to the effect that the skid marks made by the truck continued for a distance of approximately 75 feet and to the point that the truck stopped. On cross-examination, Black, the father, denied giving the little boy money to buy candy, and he testified that he never thought of that in getting out; that when he heard the truck coming he looked back and saw the child when it was about 75 feet away; that he was afraid to hollo at him; that he was standing there waiting for the car to pass, and that he did not know he was going to the store.

For the defendant, W. A. Stout, who was the driver of the truck, testified that he had been driving about twelve years; that the brakes on the truck were extra good; that he noticed the Black car and at that time was coming along "in a subconscious way" and did not just look to see how many persons were in it; that he was traveling at the usual speed of between fifteen to eighteen miles an hour looking straight ahead; that he never did see the little boy until he knew he had struck something, after which he stopped as quicky as he could; that he did not know what he had struck; that he was not over six or eight feet beyond the point where he heard the thud when he stopped his truck; that he was looking straight ahead at the time he passed the Black car, and that nothing attracted his attention either to the left or right.

The plaintiff offered no...