Bronson v. Riffe

• Decision Date: 17 March 1964
• Docket Number: No. 12252,12252
• Citation: 135 S.E.2d 244,148 W.Va. 362
• Parties: John F. BRONSON, Executor of the Estate of Alonzo L. Cline v. Virgil S. RIFFE et al. John F. BRONSON, Executor of the Estate of Iva Cline v. Virgil S. RIFFE et al.
• Court: West Virginia Supreme Court

Page 244

135 S.E.2d 244

148 W.Va. 362

John F. BRONSON, Executor of the Estate of Alonzo L. Cline v. Virgil S. RIFFE et al.

John F. BRONSON, Executor of the Estate of Iva Cline v. Virgil S. RIFFE et al.

No. 12252.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 4, 1964.

Decided March 17, 1964.

Syllabus by the Court

1. A verdict based on oral testimony which is inconsistent with physical facts admitted to be true or established by uncontradicted evidence should be set aside as being contrary to the weight of evidence. This rule of law is applicable only when oral testimony is in conflict with and is overcome by some plain law of nature, the result of a simple mathematical calculation or uncontroverted physical facts.

2. Where there is contradiction in the testimony relied upon to establish a physical fact, or where even though such testimony is not in conflict, different inferences can be drawn therefrom, the existence and effect of such physical fact becomes a jury question to be determined on the basis of direct or circumstantial evidence as the case may be, and subject to general rules as to what constitutes a jury question.

3. Where a hole was admittedly made in a paved highway by a collision between a truck and an automobile but the oral evidence was conflicting as to whether the hole was made by a portion of the truck or a portion of the car and as to whether the hole was made at the exact point of collision, such hole is not a physical fact that would justify setting aside a jury verdict based on conflicting testimony and conflicting inferences on the theory that the physical fact preponderates over the oral testimony.

4. Where the trial court improperly sets aside a verdict of a jury, such verdict will be reinstated by this Court and judgment rendered thereon.

Paul A. Viers, Pineville, Slaven & Staker, Zane Grey Staker, W. Graham Smith, Jr., Williamson, for appellants.

Wade H. Bronson, Jr., J. Brooks Lawson, Jr., Williamson, for appellee.

BERRY, Judge.

This appeal involves two wrongful death actions brought by the executor in each case which were consolidated and tried together in the Circuit Court of Wyoming County. The jury returned a verdict in favor of the defendants in both actions and in the combined case the plaintiffs moved the court to set aside the verdict and grant a new trial. An order was entered by the trial court on February 18, 1963, setting aside the verdict and awarding a new trial to the plaintiffs and upon application to this Court an appeal and supersedeas was granted June 17, 1963 to said judgment. The plaintiff in each case being the same, he will be referred to in the singular.

These actions arose out of a collision between a 1958 Dodge sedan automobile driven by the plaintiff's decedent Alonzo L. Cline in which plaintiff's decedent Iva Cline was riding, and a 1955 GMC truck, owned by the defenant Virgil S. Riffe and being operated by Paul Albert Deskins, the other defendant, on November 3, 1960 at approximately 10 o'clock a. m. For the sake of brevity, the plaintiff's decedents will hereinafter be referred to as the 'Clines'. The accident occurred on U. S. Highway No. 52 at what is known as Ike's Fork and the foot of Muzzle Mountain, Wyoming County, West Virginia.

The only question involved in the trial of these actions was whether the accident occurred on the Clines' or the defendant Riffe's side of the highway. The evidence was conflicting as to whether the accident occurred with respect to the center of the highway. However, as a result of this collision a hole which was located between ten to eighteen inches from the center line on the Clines' side of the highway was 'gouged out' of the road. The trial court gave as its reason for setting aside the verdict of the jury in favor of the defendants that the evidence greatly preponderated to the conclusion that such hole was caused by the truck at approximately the point of the impact and that the oral evidence to the effect that the point of impact was on the defendants' side of the highway was clearly inconsistent with the physical facts, contrary to all reason, and incredible. The defendant Riffe's truck was being driven in an approximately northwesterly direction, proceeding from Iaeger in McDowell County to Hanover in Wyoming County, while Clines' automobile was being operated in the opposite direction, proceeding from Wyoming County toward Iaeger and Welch in McDowell County. The accident occurred on a slight curve and the left front of the automobile hit the left rear of the truck behind the cab. Alonzo L. Cline was killed instantly and Iva Cline, his wife, the passenger in the car, died a few hours later following the accident. The top of the automobile was sheared off when it ran under the truck, causing considerable damage to the rear dual wheels, spring and driveshaft of the truck. After the collision the front end of the automobile came to rest over the center line on the defendants' side of the highway, and the truck came to rest diagonally across the road with its front end on the Clines' side of the highway at a distance of from about 25 to 65 feet from the rear of the car, the evidence being conflicting as to this distance.

The only eye witnesses to the accident were the defendant Paul Albert Deskins who was driving the truck and Harvey Goins who was driving a Buick automobile immediately behind the defendant Riffe's truck at the time of the accident. Both of these witnesses testified that the truck was being driven on its side of the highway at a speed of around 40 miles per hour and the Clines' vehicle came around the bend in the road at a high rate of speed and over into the truck's lane and struck it. The driver of the automobile following the truck, Harvey Goins, testified that he had been following the truck on the highway for several miles and it was driven in a proper manner at a reasonable speed. An attempt was made to discredit this witness because he stated that plaintiff's decedent Iva Cline was still in the car after the accident, whereas, other witnesses testified that she was lying on the road or berm after the accident occurred. There was evidence by defendants' witnesses that not only was the truck on its side of the road but that the right dual wheel was off the hard surfaced portion of the road on the defendants' side just before the accident occurred, as indicated by the tire marks.

The plaintiff's witnesses who testified during the trial all arrived at the scene of the accident after it occurred. A state policeman who was not on duty at the time, but who arrived at the scene after it occurred, testified that the truc driver admitted he was at fault, but the truck driver denied this statement on the witness stand. Another state policeman who did investigate the accident concluded that the truck driver was at fault, but a statement that he took from the defendant truck driver was to the effect that the Cline automobile ran over onto his side of the road and hit the truck. An investigation disclosed that there was a hole formed in an elongated gouge in the road near the wrecked vehicles, and witnesses testified that it was not there before the accident. Therefore, there is no dispute that the hole was in the road, that it was made at the time of the accident and that it was some ten to eighteen inches on the Clines' side of the road. However, there is a conflict in the evidence as to which vehicle caused the hole in the road.

The plaintiff's witnesses...