Bowman v. Barnes

• Decision Date: 29 September 1981
• Docket Number: No. 15073,15120,15073
• Citation: 282 S.E.2d 613,168 W.Va. 111
• Court: West Virginia Supreme Court
• Parties: John C. BOWMAN, Admr., Etc., Appellant, v. Edda B. BARNES, Individually, et al., Etc., Appellees. John C. BOWMAN, Admr., Etc., v. Edda B. BARNES, Etc., et al., Defendants Below Edda B. Barnes, Etc., Appellant, the B & O Railroad Co., Etc., Appellee.

Page 613

282 S.E.2d 613

168 W.Va. 111

John C. BOWMAN, Admr., Etc., Appellant, v. Edda B. BARNES, Individually, et al., Etc., Appellees.

John C. BOWMAN, Admr., Etc., v. Edda B. BARNES, Etc., et al., Defendants Below Edda B.

Barnes, Etc., Appellant, the B & O Railroad Co.,

Etc., Appellee.

No. 15073, 15120.

Supreme Court of Appeals of West Virginia.

Sept. 29, 1981.

Syllabus by the Court

1. Where a trial court makes an erroneous ruling extending a time period under the Rules of Civil Procedure, and one of the parties relies on the ruling, such party will not be foreclosed from further pursuit of his claim because of this error. This is particularly true where the opposing party acquiesces or fails to object to the erroneous ruling at the time it was made.

2. Rule 43(c), R.C.P., which permits separate trials of multiple defendants, must be considered not only in light of the general policy of our joinder rules, which are designed to promote consolidation of issues and parties in a single trial to save expense and encourage judicial economy, but should also be interpreted with regard to our comparative negligence doctrine, which is designed to compare plaintiff's contributory negligence to the parties involved in the accident and litigation.

3. In order to obtain a proper assessment of the total amount of the plaintiff's contributory negligence under our comparative negligence rule, it must be ascertained in relation to all of the parties whose negligence contributed to the accident, and not merely those defendants involved in the litigation.

4. The jury may determine the probable earnings of the deceased in a wrongful death action by considering his age, earning capacity, experience and habits, during his probable lifetime.

5. "An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made." Syllabus Point 2, State v. Young, W.Va., 273 S.E.2d 592 (1980).

Rice, Hannis & Douglas and Charles F. Printz, Jr., Martinsburg, for appellant Bowman in No. 15073.

Avey, Steptoe, Perry, VanMetre & Rockwell and Sprague W. Hazard, Martinsburg, for appellant Barnes in No. 15120.

Martin & Seibert, Clarence E. Martin, Jr. and Clarence E. Martin, III, Martinsburg, for appellees.

MILLER, Justice:

This appeal involves a railroad crossing wrongful death claim. The question of the proper procedural treatment of multiple defendants in a comparative negligence trial is raised. The standard of care required of a railroad at a railroad crossing must also be resolved, as well as several questions regarding evidentiary issues. We have consolidated plaintiff Bowman's appeal with defendant Barnes' appeal since both involve the issue of whether the trial court erred in requiring separate trials as to these defendants. Plaintiff Bowman has the remaining separate assignments of error.

The accident in this case occurred on the evening of September 19, 1977, at the intersection of a State secondary road and a double set of railroad tracks in Berkeley County. Plaintiff's decedent, David Allen Bowman, was traveling as a passenger in an automobile operated by Terence R. Barnes. As the automobile crossed the railroad tracks, it was struck by two helper engines operated by the Baltimore & Ohio Railroad Company (Railroad). In the collision, both Bowman and the driver, Barnes, were killed. A second passenger, Charles W. Barbour, survived the accident.

Plaintiff filed a wrongful death action naming as defendants Edda B. Barnes, individually, as the owner of the automobile, and also as administratrix of the estate of Terence R. Barnes, the driver; Margaret A. Dorsey, executrix of the estate of Paul R. Dorsey; and the Railroad. By order dated September 30, 1980, Margaret A. Dorsey was dismissed as a party defendant. Defendant Railroad raised the issue of comparative negligence, alleging that the plaintiff, as a passenger, failed to exercise reasonable care in warning the driver of impending danger, or by otherwise not taking steps to ensure his own safety.

At trial, after the selection of the jury, but prior to opening statements, the court, on its own motion, ordered separate trials of plaintiff's claim against the defendant Railroad and plaintiff's claim against the defendant Barnes. Over plaintiff's and defendant Barnes' objection, the court then proceeded to trial on plaintiff's claim against the Railroad.

The jury was given special verdict forms to permit a verdict to be computed under comparative negligence principles. The jury answered the first interrogatory, "Was the defendant, the Baltimore & Ohio Railroad Company negligent?" in the negative, so that a verdict was entered against plaintiff. Consequently, further verdict interrogatories were not answered.

I. Timely Motion for New Trial

As a preliminary matter, the Railroad urges that this appeal should be dismissed because plaintiff failed to make a timely motion for a new trial, with the result that, under Rule 59(f) of the West Virginia Rules of Civil Procedure (R.C.P.), plaintiff-appellant is "deemed to have waived all errors occurring during the trial." ¹ The Railroad points out that the circuit court judgment was entered on October 2, 1980, and the motion for a new trial was not served until October 15, 1980, several days beyond the 10-day period provided for by Rule 59(b). ²

However, at the conclusion of trial on October 2, 1980, plaintiff's counsel made a motion orally for a new trial, although he did not specify the grounds on which it was based. At that time, the trial court, without objection from the Railroad, permitted the plaintiff to proceed under a common law motion in arrest of judgment in lieu of a motion for new trial. By an order dated October 2, 1980, the court set a hearing on the motion for October 20. ³ Thus, the plaintiff received in advance a purported waiver of the time limit from the trial court, with no objection on the part of the defendant-appellee Railroad.

In its motion to dismiss the appeal, the Railroad argues that under Rule 6(b), R.C.P., the trial court is not permitted to extend the time period for a motion for a new trial. ⁴ The United States Supreme Court and federal circuit courts have made it clear that where a trial court makes an erroneous ruling extending a time period under the Federal Rules of Civil Procedure, and one of the parties relies on the ruling, such party will not be foreclosed from further pursuit of his claim because of this error. This holding is particularly true where the opposing party acquiesces or fails to object to the erroneous ruling at the time it was made. ⁵ Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962); Needham v. White Laboratories, 639 F.2d 394 (7th Cir. 1981); Hernandez-Rivera v. Immigration and Naturalization Service, 630 F.2d 1352 (9th Cir. 1980); Wright & Miller, Federal Practice and Procedure: Civil § 2812 & n. 51 (1973). Consequently, plaintiff's motion for a new trial will not be treated as untimely for purposes of preserving the issues he raises in this appeal.

II. Severance of Co-Defendants

Plaintiff Bowman and defendant Barnes claim the trial court erred in requiring separate trials of plaintiff's claims against the defendant Railroad and defendant Barnes. Plaintiff filed suit against the two defendants in a single complaint, alleging that the death of plaintiff's decedent was proximately caused by the negligence of either or both defendants. Plaintiff and defendant Barnes assert that where the comparative negligence of the plaintiff is at issue, ordering separate trials for defendants in an action arising out of a single accident violates the comparative negligence principles of Bradley v. Appalachian Power Co., W.Va., 256 S.E.2d 879 (1979). They maintain that a unitary trial is necessary under Bradley in order to determine the comparative negligence of the plaintiff in regard to all of the defendants.

The Railroad contends that under Rule 42(c) of the West Virginia Rules of Civil Procedure, the right to order separate trials rests within the sound discretion of the trial court, and that such discretion was properly exercised here. Our Rule 42(c), which is similar to Rule 42(b), Federal Rules of Civil Procedure, provides:

"Separate trials--The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by Article III, Section 13 of the West Virginia Constitution or as given by a statute of this State."

It is generally acknowledged that a single trial lessens the delay, expense and inconvenience involved in...