Boury v. Hamm
| Decision Date | 27 July 1972 |
| Docket Number | No. 12989,12989 |
| Court | West Virginia Supreme Court |
| Parties | Bonnie Jo BOURY, etc., et al. v. John M. HAMM et al. |
Syllabus by the Court
1. 'In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.' Point 1, Syllabus, Mowery v. Hitt, et al., W.Va., 181 S.E.2d 334 (1971).
2. An instruction which states that an automobile may skid on a highway without any negligence on the part of the driver, but which also points out that negligence of the driver may cause such skidding, and that in determining whether the driver was guilty of negligence the jury may take into consideration the condition of the highway and the driver's failure to take this condition into account, the speed of the automobile considering the condition of the road, and the use of brakes, is correctly given under proper evidence.
3. An instruction on unavoidable accident can be properly given in a case in which there is no evidence of negligence.
4. An instruction should not be given where there is no evidence to support such instruction.
McCamic & McCamic, Jeremy C. McCamic, George S. Hazlett, Wheeling, for appellants.
Bachmann, Hess, Bachmann & Garden, Lester C. Hess, Jr., R. Noel Foreman, Wheeling, for appellees.
This civil action was instituted for recovery of damages for personal injuries sustained by the plaintiff, Bonnie Jo Boury, in an accident which occurred while she was traveling as a passenger in a car driven by the defendant, John Hamm. The father of Bonnie Jo Boury brought the action on her behalf as parent and next friend, and also on his own behalf, seeking recovery for her medical expenses. The father of John Hamm was made party defendant, he being the owner of the car.
After trial in the Circuit Court of Ohio County, in which the jury found for the defendants, plaintiffs moved to set aside the jury verdict and to grant them a new trial. This motion was overruled and judgment was entered in favor of defendants. From that final judgment the plaintiffs prosecute this appeal.
On August 25, 1964, between 8:00 and 9:00 p.m., Bonnie Jo Boury was riding in the front seat of a 1960 Oldsmobile convertible driven by her date, John Hamm. In the back seat of the car was another couple with whom they were double dating. Early in the evening the four had stopped at a Wheeling drive-in restaurant for a snack and were thereafter proceeding east on National Road towards Elm Grove. It had been raining earlier in the day and was continuing to rain as the car proceeded towards the scene of the accident. The passengers in the car were the only witnesses to the accident and all testified that the car was being driven at a speed less than 35 miles per hour; that the headlights were on and the windshield wipers were operating. A traffic light caused the defendant driver to apply his brakes slightly at the top of a small hill and as the car proceeded down-grade it began to slide to the left. The defendant driver testified that thereupon he turned the front wheels to the left, but the car failed to correct itself from 'fish-tailing,' proceeding for about ten yards, then striking a utility pole which was located immediately adjacent to the highway. The driver, John Hamm, and the plaintiff, Bonnie Jo Boury, were thrown from the driver's side of the car, suffering injuries which required their hospitalization.
The passengers testified that the car had not skidded when stopping at previous traffic lights. As to the light in question, the driver testified: '. . . I applied my brakes and (sic) what I considered a normal manner, especially for those road conditions they were power brakes, and with power brakes, if you jump them they might lock, but I eased the brakes and then eased them again, and, if I recall, when I eased them the second time, the rear of the car began to spin to the left, . . ..'
None of the passengers testified that the defendant John Hamm was operating the car other than reasonably and prudently in considering the weather and condition of the highway, nor was there any evidence that the automobile was not in good mechanical condition nor that the tires were not well-treaded. The jury was taken for a view of the accident scene, and had the benefit of this view in relation to the location of the traffic lights, the grade of the road and other physical features of the scene of the accident.
The trial court gave a charge to the jury as distinguished from the giving of separate instructions. Plaintiffs objected to certain parts of this charge, and in seeking reversal on this appeal assign as error the action of the trial court in overruling the aforesaid objections. Plaintiffs' assignments of error will be considered with particularity as follows:
First: That the circuit court erred in not granting the plaintiffs' motion for a directed verdict on the issue of liability or in not instructing the jury to find for plaintiffs.
On this appeal, plaintiffs contend that defendant driver was prima facie negligent for certain alleged violations of traffic regulations contained in Chapter 17C of the Code of West Virginia. The record before us fails to show that this issue was raised or passed upon by the circuit court, and therefore will not be considered here.
'In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.' Point 1, Syllabus, Mowery v. Hitt, et al., W.Va., 181 S.E.2d 334 (1971). Also, Point 1, Syllabus, Bank of Wheeling v. Morris Plan Bank & Trust Co., W.Va., 183 S.E.2d 692 (1971).
A review of the record before us shows that there was a factual issue as to negligence of the driver which was an issue for determination by the jury. The trial court therefore acted properly in not directing a verdict for plaintiffs and in not instructing the jury to find for plaintiffs.
Second: That the circuit court erred in including in its charge the defense theory that an automobile may skid without the slightest negligence on the part of the driver.
The mere fact that an automobile skids on the road is not alone evidence of negligence on the part of the driver. Sigmon v. Mundy, 125 W.Va. 591, 25 S.E.2d 636 (1943); Woodley v. Steiner, 112 W.Va. 356, 164 S.E. 294 (1932).
That part of the charge dealing with the skidding reads as follows:
'The Court instructs the jury that under the law of the State of West Virginia the mere fact that an automobile skids on a highway is not evidence of negligence, and that an automobile may skid without the slightest negligence on the part of its driver. On the other hand, the Court further instructs the jury that an automobile may be caused to skid by the negligence of the driver, and if this is established by a preponderance of evidence it has the same consequences as to liability as negligence of any other character; you may...
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