Breedlove v. Galloway

• Decision Date: 13 May 1930
• Docket Number: 6649.
• Citation: 153 S.E. 298,109 W.Va. 164
• Parties: BREEDLOVE v. GALLOWAY et al.
• Court: West Virginia Supreme Court

153 S.E. 298

109 W.Va. 164

BREEDLOVE v. GALLOWAY et al.

No. 6649.

Supreme Court of Appeals of West Virginia.

May 13, 1930

Submitted May 6, 1930.

Syllabus by the Court.

Error in directing verdict may be reviewed, though no motion for new trial was made in lower court.

A judgment may be reviewed as to error in directing a verdict although no motion for a new trial was made in the court below. Freeburn v. Railroad Co., 79 W.Va. 789, 91 S.E. 990, overruled.

Whether it is driver's duty to stop to avoid collision with automobile on wrong side of street cannot ordinarily be determined as matter of law.

Whether it is the duty of a driver, on meeting an automobile on the latter's wrong side of the road, to stop to avoid a collision, cannot ordinarily be determined as a matter of law.

Error to Circuit Court, Kanawha County.

Action by C. R. Breedlove against S. L. Galloway and another. Judgment for defendants, and plaintiff brings error

Reversed verdict set aside, and new trial awarded.

A. G Thompson, of Charleston, for plaintiff in error.

J. Howard Hundley, of Charleston, for defendants in error.

WOODS J.

This is an action against father and son to recover damages to plaintiff's automobile through the alleged negligent operation by the son of the father's automobile. The case went to trial before a jury, and, at the conclusion of plaintiff's evidence, the court, on motion, and over the objection and exception of plaintiff, directed a verdict for the defendants. An exception was also taken to the action of the court in entering judgment on the verdict.

It is contended by counsel for defendants that the plaintiff has waived his right to complain of the action of the trial court in that he did not make a motion to set aside the verdict and award him a new trial--citing Freeburn v Railroad Co., 79 W.Va. 789, 91 S.E. 990, 991, to that effect. This brings us face to face with the proposition of whether or not the rule therein stated is based on reason or authority, and whether or not we shall abide by it in the future. As authority for that decision, three cases from foreign jurisdictions are cited, namely, Witt v. Lexington & E. Ry. Co., 158 Ky. 401, 165 S.W. 399; Brown & Bridgeman v. Casket Co., 30 Okl. 144, 120 P. 1001; Seymour v. Southern Ry. Co., 117 Tenn. 99, 98 S.W. 174. Before discussing the applicability of such authorities, let us consider for a moment our own practice in saving exceptions. Where a case has been tried and submitted to a jury, in order that alleged errors may be reviewable in this court, the complaining party, in addition to taking an exception to the erroneous ruling, and embodying the same in a bill of exceptions, must make a motion to set aside the verdict, the refusal of which must be excepted to and noted in the record. Danks v. Rodeheaver, 26 W.Va. 274. However, where a case is submitted to the court in lieu of a jury, the motion to set aside the verdict is not necessary. Capital City Supply Co. v. Beury, 69 W.Va. 612, 72 S.E. 657. Nor is it necessary where there is a demurrer to evidence. Proudfoot v. Clevenger, 33 W.Va. 267, 10 S.E. 394. This court has repeatedly recognized the fact that a motion to direct a verdict amounts to a demurrer to the evidence. Nuzum v. Pittsburgh, etc., R. Co., 30 W.Va. 228, 4 S.E. 242; Soward v. American Car Co., 66 W.Va. 266, 66 S.E. 329; Mosely v. McCrory, 101 W.Va. 480, 482, 133 S.E. 73. Then, in view of this practice, why require a motion to set aside the verdict where it has been directed? This court in the Freeburn Case makes the following observation: "Technically there is no difference between a verdict, superinduced by erroneous instructions as to the law of the case, and a verdict rendered in obedience to a peremptory instruction. In either case the court's erroneous ruling is responsible for the verdict." On such premise, together with the holdings of the Kentucky, Oklahoma, and Tennessee cases, hereinbefore cited, the conclusion was reached in that case that a motion for a new trial was essential to a review of the error. To our mind, the finding on the main issue in a directed verdict is just as surely a finding of the court as if the matter had been heard by it in lieu of a jury. The jury's action is a mere form, brought about by the fact that it had been impaneled to try the case, and does not amount to a verdict in the common acceptation of trials by jury. But let us look to the three cases relied on to support the decision in the Freeburn Case. The Oklahoma case was considered in the light of a statute providing in effect that in...