Boyce v. Black, 9134.

• Court: Supreme Court of West Virginia
• Writing for the Court: RILEY
• Citation: 15 S.E.2d 588
• Parties: BOYCE. v. BLACK.
• Docket Number: No. 9134.,9134.
• Decision Date: 22 April 1941

15 S.E.2d 588

BOYCE.
v.
BLACK.

No. 9134.

Supreme Court of Appeals of West Virginia.

April 22, 1941.

Rehearing Denied July 30, 1941.

Syllabus by the Court.

1. "Before directing a verdict in defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." Fielder v. Service Cab Co., W.Va., 11 S.E.2d 115, Pt. 1 Syl.

2. Under Code, 17-8-12, the burden is on the plaintiff to establish by a clear preponderance of the evidence that a sharp turn

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or sharp curve, not so designated by a sign or marker under the provisions of the statute, existed before a violation of the statute can be shown for the purpose of establishing civil liability.

3. Where one of two or more passengers riding in an automobile, which is being negligently driven, actually protests in an audible tone of voice against the negligent conduct of the driver, the fellow passenger or passengers are relieved from any duty to protest.

4. In this state "the extent to which one riding as a guest should anticipate an impending peril and act in relation thereto, depends upon the facts of each case, and ordinarily the question of the exercise of due care on the part of" such guest "is for the jury, under proper instructions." Herold v. Clendennen, 111 W.Va. 121, 161 S.E. 21.

Error to Circuit Court, Ritchie County.

Action by Marie R. Boyce, administratrix of the estate of Vernon Boyce, deceased, against George Black, to recover damages for the alleged wrongful death of decedent in an automobile accident. Judgment for defendant, and plaintiff brings error.

Judgment reversed, verdict set aside, and new trial awarded.

Max DeBerry, of Harrisville, for plaintiff in error.

S. A. Powell and Dewey S. Wass, both of Harrisville, for defendant in error.

RILEY, Judge.

Marie R. Boyce, administratrix of the estate of Vernon Boyce, deceased, plaintiff in this action brought against the defendant, George Black, to recover damages for the alleged wrongful death of her decedent, prosecutes error to a judgment of the Circuit Court of Ritchie County in defendant's favor, based upon a verdict directed at the close of plaintiff's evidence in chief.

The declaration alleges that the defendant negligently operated his automobile, in which decedent was a passenger, on Route No. 50 between the City of Pennsboro and the Town of Ellenboro, and that by reason of defendant's alleged negligence, decedent was fatally injured.

Three issues are raised in plaintiff's brief: (1) whether the evidence was suf ficient to establish primary negligence of defendant contributing to decedent's injuries; (2) whether the evidence showed that decedent assumed the risk by riding in the defendant's automobile without making any protest against the alleged negligent operation thereof; and (3) whether the court erred on a motion to set aside the verdict in requiring plaintiff to file a writing setting forth in detail claimed misconduct during the trial and the names of the witnesses to be presented before the court would hear evidence of such misconduct.

In the statement of facts and inferences upon which we base this opinion, we, of course, are guided by the rule announced in Fielder v. Service Cab Co., 122 W.Va. 522, 11 S.E.2d 115, and Hambrick v. Spalding, 116 W.Va. 235, 179 S.E. 807, to the effect that before directing a verdict in a defendant's favor "every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence."

On the night of the accident defendant, accompanied by six other young people including decedent, drove his car over Route No. 50 from a dance hall near Ellen-boro to Pennsboro. On the return trip, over the same route, two of the passengers occupied the front seat with the driver, Black, and decedent, together with three passengers, the rear seat, decedent being on the extreme right with a girl passenger on his lap.

The fatality occurred when defendant's automobile (then being driven in a westerly direction) left the concrete pavement at a left curve (about half-way between Pennsboro and Ellenboro) and struck a telephone pole. The curve was just west of what is designated in the record as a "bridge" over Husher's Run. A road (not described) joins with Route No. 50 from the north at the curve. The pole was located nine and a half feet north of the paved portion of Route No. 50, and approximately one hundred and thirty-five feet west of the sharpest part of the curve. There was a concrete culvert forty feet east of the telephone pole. The north headwall of the culvert was some distance from the paved portion of the highway and flush with the north berm. This berm was estimated to be more than three feet in

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width and north of it was a ditch which drained both ways into a ditch leading into the culvert. The telephone pole was about ten inches in diameter, being split vertically for about ten feet.

As the automobile approached the "bridge", defendant saw the headlights of two automobiles approaching from the opposite direction. At or about the sharpest point of the curve the right wheels of defendant's automobile left the concrete pavement. The car proceeded with its right wheels over or along the outer edge of the culvert headwall and across the ditch which connected with the culvert until it came to a stop a short distance beyond the pole which it had struck. According to defendant's written statement, the front end of the car did not strike the pole, but...