Bower v. Brannon, 10707

• Decision Date: 10 December 1955
• Docket Number: No. 10707,10707
• Citation: 90 S.E.2d 342,141 W.Va. 435
• Court: West Virginia Supreme Court
• Parties: H. F. BOWER, Adm'r, v. Arlen Ray BRANNON.

Page 342

90 S.E.2d 342

141 W.Va. 435

H. F. BOWER, Adm'r, v. Arlen Ray BRANNON.

No. 10707.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1955.

Decided Dec. 10, 1955.

Syllabus by the Court.

1. 'A judgment non obstante veredicto must be based upon the merits of the case as disclosed by the pleadings, not in any sense upon the evidence adduced upon a material issue properly joined. It is not tantamount to a motion to set aside a verdict for lack of evidence to sustain it, nor can it be used for such purpose, or to obtain a judgment of dismissal for lack of evidence.' Pt. 1 Syl., Holt v. Otis Elevator Co., 78 W.Va. 785 [90 S.E. 333, L.R.A.1917A, 1194].

2. Instructions which tend to mislead or confuse the jury are properly refused.

3. Where the evidence is: That defendant, operating an automobile after dark, was approaching a roadside inn at a speed of 45 to 55 miles an hour; that plaintiff's decedent alighted from a taxicab and, with a view in the direction from which defendant's automobile was approaching of at least 200 yards, started to cross the highway to the inn; that defendant failed to observe plaintiff's decedent until within 30 feet of him; and, that defendant struck plaintiff's decedent after he had crossed the center line of the highway, and was approximately three-fourths of the way across the highway; the question of contributory negligence on the part of plaintiff's decedent was properly one for jury determination.

John A. Lile, Lewisburg, for plaintiff in error.

Wm. Bruce Hoff, Parkersburg, William S. Ryan, Spencer, for defendant in error.

BROWNING, Judge.

Harry F. Bower, the father of Charles D. Bower, deceased, and the administrator of his estate, instituted this action of trespass on the case for wrongful death against Arlen Ray Brannon, hereinafter called defendant. The jury returned a verdict for $10,000, and judgment was entered thereon, to which this Court granted a writ of error and supersedeas.

The defendant contends that the trial court erred: In failing to find, as a matter of law, that the decedent was guilty of negligence, contributing proximately to his death; in refusing four instructions offered by the defendant; and in overruling a motion for judgment non obstante veredicto.

The decedent sustained the injuries which resulted in his death when struck by an automobile driven by the defendant on November 29, 1952. The accident occurred about 1 1/4 miles from Spencer, West Virginia, on U. S. Route 119, at approximately 8:30 p.m. The highway at this point, in the direction of Spencer, comes over a small hill and extends straight for a distance of approximately one mile. The Rainbow Inn, in front of which the accident occurred, is located about 200 yards from the crest of the hill. The automobiles of the patrons of the Rainbow Inn are customarily parked at an angle, making it necessary to back upon the highway when leaving.

Two eyewitnesses to the accident testified in behalf of the plaintiff. One witness, Griffith, was standing inside the Rainbow Inn looking through a window. He testified that he heard a car drive up, saw it stop opposite the Inn, then saw the decedent step out and start across the road. He stated that he saw the lights of defendant's automobile for approximately 400 feet; that defendant's speed was between 80 and 85 miles an hour; that the decedent was walking across the highway looking up the hill toward defendant's automobile when he was struck; and that he assisted a State Trooper in measuring the skid marks which extended for 78 feet. Another witness, Nichols, was sitting in an automobile in front of the Rainbow Inn, and had turned his lights on preparatory to backing out upon the highway. He had not started his engine, but was waiting for the defendant's automobile to pass, when a cab drove up, stopped on the opposite side of the highway, decedent alighted, started to cross the road, and had passed the center line when he was hit. He also testified that defendant's speed was about 65 miles an hour, and that the skid marks measured 78 feet.

Sergeant Shields of the State Police, who investigated the accident, testified that the skid marks began 23 feet up the hill from a point directly opposite the front door of the Rainbow Inn, and extended 55 feet beyond, for a total distance of 78 feet; that the skid marks were in defendant's traffic lane; that, from his experience, 26 years, with the State Police, it was his opinion that defendant's speed, as shown by the skid marks, was between 40 and 50 miles an hour; and that the speed limit in that vicinity was 55 miles an hour, subject to statutory restrictions as to due care and consideration of special hazards. Medical evidence, showing the extent of decedent's injuries and the resultant death of decedent was also produced by the plaintiff. At the conclusion of plaintiff's case, defendant moved the court to strike the evidence of plaintiff, and direct a verdict for the defendant, which motion was overruled.

Defendant was the only witness in his behalf. He testified that he had just left his father's store, and was proceeding at a speed of 40 to 45 miles an hour; that as he came over the hill and started down, he noticed an automobile approaching; that he passed the cab in which decedent had been riding near the crest of the hill, and noticed another automobile approaching; that he saw the lights of the Rainbow Inn; that he was looking straight ahead, getting an overall view of the road before him; that he was 30 feet from the decedent when he first observed him; that decedent was wearing dark colored clothing; that he struck decedent with the right front of his automobile, between the hood ornament and the right fender; and that he did not swerve to avoid decedent, but applied his brakes. No other witness testified that another automobile was approaching the scene at the time of the accident.

When the jury returned a verdict for the plaintiff for the sum of $10,000, the defendant moved 'to set the verdict aside on grounds contrary to law and evidence, judgment non obstante veredicto, assigning as further grounds the court's refusal to give instructions offered by the defendant, to-wit: Defendant's Instruction No. 1-A, Instruction No. 1 and Instruction No. 6, which embodies the only statement of last clear chance, and the giving of Plaintiff's Instruction No. 2, with regard to compensation for loss of society, etc., and the admission of certain evidence offered by the plaintiff over the object of defendant.', which motion was overruled, and judgment was entered on the verdict.

Defendant's Instruction No. 1-A was peremptory and Defendant's Instruction No. 1 would have told the jury that if the deceased was crossing a roadway at a point other than within a marked crosswalk, then it was the duty of the deceased 'to yield the right of way to all vehicles upon the roadway.'

Defendant's Instruction No. 6 would have informed the jury that even if they believed from a preponderance of the evidence that there was negligence on the part of the defendant, which would otherwise support a recovery, they should find a verdict for the defendant 'if previous to the accident and after the discovery of his own peril, the decedent, by the exercise of ordinary care, could then have avoided his own injury, * * *.'

In defendant's motion for judgment non obstante veredicto, no defect was cited in the pleadings, nor is any called to the attention of this Court by brief or argument. An examination of the pleadings reveals no material defect. In the first syllabus point in the opinion of Holt v. Otis Elevator Co., 78 W.Va. 785, 90 S.E. 333, L.R.A.1917A, 1194, it stated that: 'A judgment non obstante veredicto must be based upon the merits of the case as disclosed by the pleadings, not in any sense upon the evidence adduced upon a material issue properly joined. It is not tantamount to a motion to set aside a verdict for lack of evidence to sustain it, nor can it be used for such purpose, or to obtain a judgment of dismissal for lack of evidence.' There is no merit in this assignment of error, nor is there any merit in the assignment as to the refusal of Defendant's Instructions Nos. 1 and 6. Chapter 129, Acts of the Legislature, Regular Session, 1951, repealed certain parts of Chapter 17 of the Code, all relating to Motor Vehicles, and amended the Code by 'adding thereto three new chapters to be designated chapters seventeen-a, seventeen-b and seventeen-c, * * *.' It is true that Instruction No. 1 follows the provisions of 17C-10-3(a) which provides that: 'Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway * * *', but 17C-10-4 further provides that: 'Notwithstanding the foregoing provisions of this article every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway * * *.' This instruction tended to mislead the jury, and was properly refused.

Defendant's Instruction No. 6 is a last clear chance instruction, and would apply that doctrine to the plaintiff's decedent. Heretofore, in this jurisdiction, the last clear chance doctrine has been applied only against defendants. However, we are not unmindful of the rule laid down in Willard Stores, Inc., v. Cornnell, 181 Va. 143, 23 S.E.2d 761, and the dissertations upon the subject in 49 W.Va.Law Quarterly 51, and 37 W.Va.Law Quarterly 362. Suffice to say that the evidence in this case did not justify the giving of this instruction. The defense of contributory negligence was fully presented to the jury by the defendant's instructions which the trial court gave. The court properly gave Plaintiff's Instruction No. 2, and properly refused Defendant's Instruction No. 9 upon the question of damages.

The question of whether it was error to refuse the peremptory instruction...