Bolling v. Clay

• Decision Date: 09 November 1965
• Docket Number: No. 12437,12437
• Citation: 150 W.Va. 249,144 S.E.2d 682
• Court: West Virginia Supreme Court
• Parties: Donald J. BOLLING, Gerry Lee Bolling, an Infant, etc., et al. v. Charles N. CLAY.

Page 682

144 S.E.2d 682

150 W.Va. 249

Donald J. BOLLING, Gerry Lee Bolling, an Infant, etc., et al. v. Charles N. CLAY.

No. 12437.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1965.

Decided Nov. 9, 1965.

Syllabus by the Court

1. 'In determining whether the verdict of a jury is supported by the evidence every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Point 3 Syllabus, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736.

2. A collision of two motor vehicles upon a public highway may occur in the absence of negligence on the part of either driver. In such circumstances, the collision will be regarded in law as an unavoidable accident.

3. There can be no recovery of damages for personal injuries or property damage resulting from a collision of two motor vehcles upon a public highway if it appears that both drivers of such vehicles, in the circumstances leading to the collision, exercised the care which a reasonably prudent person would have exercised in the same or a like situation and that neither driver, therefore, was guilty of negligence which proximately caused, or which concurred proximately with the negligence of the other to cause, the collision.

4. In a jury trial of a civil action for recovery of damages resulting from a collision of two motor vehicles upon a public highway, the question whether the collision resulted from negligence or from an unavoidable accident is a question for determination by the jury where the state of the evidence is such that reasonable men might properly draw different conclusions in relation to that issue.

Quinlan, Nelson & Williamson, H. G. Williamson, Huntington, for appellants.

Maxwell W. Flesher, William I. Flesher, Huntington, for appellee.

CALHOUN, Judge:

As a result of a collision of two automobiles in the City of Huntington on December 23, 1961, Donald J. Bolling and Gerry Lee Bolling, residents of Huntington, instituted a civil action against Charles N. Clay in which both plaintiffs sought to recover damages for personal injuries and medical expenses and in which Donald J. Bolling also sought to recover for damages caused to his automobile by the collision. Lawrence E. Bolling, father of Gerry Lee Bolling, an infant, sued to recover medical bills incurred in connection with personal injuries sustained by the son. Charles N. Clay, the defendant, filed a counterclaim against Donald J. Bolling for damages caused to Clay's automobile by the collision.

Upon the trial of the case, the jury returned the following verdict: 'We, the jury, do agree and find that none of the parties in this action are entitled to recover one from the other.' The court entered an order, pursuant to the verdict, by which it was adjudged that each of the four parties 'take nothing', and that the entire action be dismissed on its merits. Gerry Lee Bolling prosecutes this appeal from the action of the trial court in overruling his motion to set aside the verdict as it relates to him and to grant him a new trial.

At the time of the collision, Donald J. Bolling was operating an automobile in which his brother, Gerry Lee Bolling, fifteen years of age, was a passenger. The other automobile involved in the collision was being operated by the defendant, Charles N. Clay. On this appeal, the basic contention made in behalf of Gerry Lee Bolling is that the verdict shows on its face that the jury found that both drivers were guilty of negligence, which caused the jury to deny recovery of damages to each of them; that, therefore, it follows that the two drivers were guilty of concurrent negligence which would entitle the infant plaintiff to maintain an action against either or both of them; that the record discloses that the infant plaintiff was not guilty of any ngligence which contributed prxomately to cause the collision; and that, therefore, the verdict should be set aside to the extent that it denied recovery to him and that he should be granted a new trial.

Counsel for the defendant strenuously assert that the verdict, pursuant to instructions given by the court, discloses a jury finding that neither driver was guilty of actionable negligence and that, in this sense, the personal injuries which the infant plaintiff sustained were caused by an 'unavoidable accident.'

The collision occurred at the point where Sixteenth Street and Fifth Avenue intersect at right angles. Each of the two streets has four traffic lanes. Traffic was permitted to proceed both north and south on Sixteenth Street. Traffic on Fifth Avenue was permitted to proceed from west to east. Overhead at the intersection there was a four-phase traffic light at the time of the collision. Before the collision, the Bolling automobile was proceeding northward and the defendant's automobile was proceeding southward on Sixteenth Street. Immediately ahead of the defendant's automobile on Sixteenth Street was an automobile, proceeding southward, which turned to its left at the intersection, across the traffic lane in which the Bolling automobile was traveling and eastward into Fifth Avenue. The identity of the driver of that automobile is unknown. The defendant's automobile likewise turned to its left at the intersection, into the path of the Bolling automobile, in an effort to proceed eastward into Fifth Avenue. In these circumstances, the collision here in question resulted. While the exact point of impact is not made clear by the testimony, it appears to be undisputed that the collision occurred within the intersection.

The jury was adequately instructed in relation to primary negligence, contributory negligence, proximate cause and credibility of witnesses. The jury was also instructed that negligence of Donald J. Bolling in the operation of his automobile could not be imputed to Gerry Lee Bolling merely because the latter was a passenger in that automobile; and that Gerry Lee Bolling, if he was not negligent, might properly recover damages from the defendant even if it appeared that his brother, in the operation of his automobile, was guilty of negligence which proximately contributed to cause the accident. The court also gave and read to the jury defendant's instruction number 12 as follows: 'The Court instructs the jury that the law recognizes that accidents may occur without negligence on the part of any party involved, and that persons may receive injuries as a result thereof. Such accidents are known as unavoidable accidents. If you believe from the evidence that the alleged injuries occurred as a result of an unavoidable accident, that is, without negligence on the part of Charles N. Clay, then you should find your verdict in favor of the defendant.' No specific objection was made to the granting of the instruction, as required by R.C.P. 51, except that the giving of it was not warranted by the evidence.

The accident occurred about 7:30 p. m. It was then dark, it was raining and the streets in the area were wet.

Certain ordinances of the City of Huntington concerning regulation of vehicular traffic were put in evidence. One of these was as follows: 'Obedience to official traffic-control devices. The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto placed in accordance with the provisions of this ordinance, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this ordinance.'

Construed in relation to the matters involved on this appeal, the effect of the verdict is a jury finding against Gerry Lee Bolling, plaintiff, and in favor of Charles N. Clay, the defendant. In considering whether the trial court improperly refused to set aside the verdict as it related to Gerry Lee Bolling and to grant him a new trial, every reasonable and legitimate inference fairly arising from the evidence in favor of the defendant must be considered, and the Court must accept as true all facts, favorable to the defendant, which the jury might properly have found from the evidence. Poe v. Pittman et al., W.Va., 144 S.E.2d 671; Walker v. Monongahela Power Co., 147 W.Va. 825, pt. 3 syl., 131 S.E.2d 736. In this connection we bear in mind that each of the three parties to the action was undertaking to recover damages sustained as a consequence of the accident; that the jury was fully instructed concerning the rights of each party in that respect; and that the jury found that none of the parties was entitled to recover damages. In reviewing the evidence, therefore, we must construe it in the light of all facts favorable to the defendant which the jury might properly have found from the evidence.

The three parties to the action and two municipal police officers were the only witnesses whose testimony was adduced to show the cause or causes of the collision.

Gerry Lee Bolling, the infant plaintiff, testified that immediately before the collision, the automobile in which he was a passenger was proceeding northward on Sixteenth Street in the lane next to the center of the street; that, as the Bolling automobile was about to enter the intersection, the light on the overhead traffic signalling device was green; that the third automobile, the identity of the driver of which is...