Butcher v. Stull

Decision Date20 April 1954
Docket NumberNo. 10648,10648
Citation82 S.E.2d 278,140 W.Va. 31
CourtWest Virginia Supreme Court
PartiesBUTCHER, v. STULL et al.

Syllabus by the Court.

1. In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, assumed as true.

2. Instructions which correctly state the law of the case are properly given if based upon adequate evidence.

3. Instructions unsupported by the evidence in a case, though correctly stating a proposition of law, are properly refused.

4. The opinion of a witness, who had merely observed an automobile after it had come to rest against an obstruction, as to its speed at the moment of impact, was properly excluded where there was no attempt to qualify such witness as an expert.

5. Where plaintiff, a woman, suffered a severely cut lip, leaving a permanent scar, a cut knee, brush burns and bruises; required a physician's attention frequently for two or three weeks; and was incapacitated from performing her normal household duties for approximately six weeks, this Court cannot say that a verdict in her favor in the amount of $2,500.00 is excessive.

6. Examination of a witness to show interest or bias is not rendered improper because it may show the interest of an insurance company in the case.

7. Where an apparently disinterested witness, in a personal injury or wrongful death action, testifying for the defense, controverts the witnesses for the plaintiff as to material facts, it is not error for plaintiff's counsel to cross-examine as to such witness's interest or bias even though such examination, of necessity, reveals to the jury that the defendant is protected by insurance, when the jury is properly admonished by the court to consider such evidence solely as an aid in determining the interest or bias of such witness in weighing his testimony.

Wysong & Wysong, Webster Springs, for plaintiffs in error.

Henry McLane, Clay, R. A. Clapperton, Summersville, for defendant in error.

BROWNING, Judge.

Mary Estella Butcher instituted his action of trespass on the case to recover damages in the amount of $2,500 for personal injuries sustained in a collision between an automobile, operated by herself, and an automobile driven by the defendant Armstrong, owned and operated by the defendant Stull as a taxicab. The jury returned a verdict for the plaintiff in the full amount sought, and judgment was entered thereon, to which this Court granted a writ of error on November 16, 1953.

The evidence is flatly contradictory as to the material facts, the plaintiff and the defendants presenting distinct, if not irreconcilable, versions of the collision. The accident occurred at approximately 1:30 o'clock on the morning of February 24, 1953, a short distance north of Summersville, West Virginia, on U.S. Route No. 19.

Plaintiff, who was proceeding north, testified that the defendant Armstrong, driving south, was attempting to pass another automobile going in the same direction, and had driven over into the left lane; that she pulled as far as possible on to the berm on her side of the road, 'eased' on the brakes, and reduced her speed to twenty or twenty-five miles an hour; that defendant never succeeded in passing the other car prior to the accident; and that, after the collision, her automobile proceeded a short distance and crashed, at an angle of approximately 45~ to the road, into a rock ledge on her right side of the highway. Plaintiff's witnesses, all of whom might be said to have some interest, with the exception of the State Trooper who investigated the accident, testified that glass and debris were discernible only in the lane in which plaintiff was traveling.

The defendant Armstrong testified that, as he rounded a slight curve in the road, he saw plaintiff's automobile some 400' ahead approaching on the wrong side of the road; that he drove on to the berm on his side of the road, and his automobile was there struck by plaintiff's vehicle; and, that after the collision, his automobile went into a ravine on his side of the road, about 15' beyond the point of collision. Defendant Armstrong denies that he attempted to pass another automobile, or that a third automobile was near the scene of the collision. Defendants' witnesses, who were likewise interested, stated that all glass and debris was in the lane in which defendants' automobile was proceeding; that tire tracks were discernible along the berm of the road for a distance of from 60' to 80' before going over the embankment; and that the tracks were identifiable as those of the defendant because of the special mud and snow grip tires used on defendant's vehicle.

The State Police officer testified that glass and debris were scattered for a distance along the center of the highway, and, that, though he noticed tracks on the berm on defendant's side of the road, he could not discern any treadmarks. This witness further stated that Armstrong told him, a short time after the collision, that the speed of his automobile was 50 to 55 miles an hour. The plaintiff testified to hearing this conversation, and that Armstrong said 'he was making between 55 and 60.' At the trial, Armstrong that he was 'approaching the curve out there', and that he was traveling at a speed 'I would say 35 or 40' miles an hour. Upon being asked whether he told anyone that he was traveling at a speed of 50 to 55 miles an hour, he answered: 'Not that I remember.' Upon cross-examination, he stated further that he was traveling at a rate of 35 or 40 miles an hour when he saw the headlights of plaintiff's automobile, applied his brakes, and at the point of impact 'I couldn't have been doing over 20.'

The plaintiff's injuries consisted of a cut lip, in which seven stitches were taken, and superficial lacerations and bruises, none of which was permanent, with the exception of the scar on the lip. She incurred medical expenses of $25, and testified that she was unable to perform her ordinary household duties for about six weeks.

The following are the assignments of error relied upon by the defendants: (1) The verdict is not supported by the evidence; (2) the trial court erred in giving Instructions Nos. 1 and 2 for the plaintiff, and refusing to give Instructions Nos. 4, 6, 7, 12 and 13 for the defendants; (3) the refusal to permit a defense witness to testify as to the speed of plaintiff's automobile; (4) the verdict was excessive; and (5) permitting the defense witness Haggerty to be cross-examined by plaintiff's counsel relative to his occupation, thereby revealing to the jury that Haggerty was an insurance adjuster, and that defendant Stull had indemnity insurance.

As hereinbefore stated, the testimony of the only two witnesses to the collision who testified at the trial, the plaintiff and the defendant Armstrong, is in complete conflict. The plaintiff stated that the defendant Armstrong drove his automobile into her lane of traffic, and, although she went on to the berm to her right side of the highway, nevertheless, she was unable to avoid the collision with the taxicab. The defendant Armstrong just as decisively testified that the plaintiff drove her automobile into his lane of traffic, and that, although he left the highway and went on to the berm on his side of the road, that the collision occurred at that point.

Several witnesses testified on each side as to the physical facts which they observed subsequent to the collision, some supporting the plaintiff and some the defendants. The numerical weight of the evidence was on the side of the defendants, but a jury is not required to accept the version given by the superior number of witnesses in contrast to a smaller number testifying to the contrary. The rule is firmly established in this jurisdiction that a verdict of a jury upon conflicting facts, under proper instructions, will not be disturbed unless plainly wrong or manifestly against the weight of evidence. In Adkins v. Raleigh Transit Co., 127 W.Va. 131, 31 S.E.2d 775, 777, this Court said: 'The evidence of plaintiff and that of defendant, in all essential particulars, conflicts. In view of the jury's resolving this conflict in the plaintiff's favor, we must, in the appraisal of this case, as every trial court should do in the consideration of a motion for a directed verdict, entertain every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, and assume as true those facts which the jury may properly find under the evidence.'

The questions as to whether there was primary negligence on the part of the defendants, or, assuming primary negligence, whether the plaintiff was guilty of negligence proximately contributing to the collision, and her resulting injuries, were factual ones for the jury. The verdict is supported by the evidence.

The giving of plaintiff's Instruction No. 1 has caused this Court some concern, and a lucid discussion of it requires that it be quoted in full. 'The court instructs the jury that under the laws of the State of West Virginia, no person shall drive a vehicle upon a highway of this state with a speed which is greater than will permit the driver to exercise proper control of the vehicle in order to decrease the speed or to stop as may be necessary to avoid colliding with another vehicle properly upon the highway, and if you believe from all the evidence in this case, and by a preponderance thereof, that the defendant, Elbon Armstrong, was operating a taxi owned by the defendant, Q. G. Stull, on U. S. Route 19, at the time of the accident at a speed that was greater than would permit him to exercise proper control of the taxi and decrease the speed or stop said taxi in order to avoid...

To continue reading

Request your trial
23 cases
  • Graham v. Wriston
    • United States
    • West Virginia Supreme Court
    • 27 Junio 1961
    ...v. Lewis, 96 W.Va. 112, 123 S.E. 564; State ex rel. Harrah v. Walker, 137 W.Va. 849, pt. 1 syl., 74 S.E.2d 679; Butcher v. Stull, 140 W.Va. 31, 82 S.E.2d 278; Adkins v. Smith, 142 W.Va. 772, 98 S.E.2d 712. In the instant case, it can not be said that counsel's remarks were provoked by words......
  • Flanagan v. Mott, s. 12003
    • United States
    • West Virginia Supreme Court
    • 17 Mayo 1960
    ...mentioning of insurance before the jury in such a trial constitutes prejudicial error has been somewhat qualified. See Butcher v. Stull, 140 W.Va. 31, 82 S.E.2d 278. We are of the view that the point of error raised by defendants relating to 'teaching the insurance company a lesson' is well......
  • Dunning v. Barlow & Wisler, Inc.
    • United States
    • West Virginia Supreme Court
    • 17 Diciembre 1963
    ...was returned, must be considered, and those facts, which the jury might properly find under the evidence, assumed as true.' Syl. Pt. 1, Butcher v. Stull, 140 W.Va. 31 6. In cases within its appellate jurisdiction this Court will not consider or decide nonjurisdictional questions which have ......
  • Pygman v. Helton, 12259
    • United States
    • West Virginia Supreme Court
    • 25 Febrero 1964
    ...Costello v. The City of Wheeling, 145 W.Va. 455, 117 S.E.2d 513; Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808; Butcher v. Stull, 140 W.Va. 31, 82 S.E.2d 278; Pretyman v. Hopkins Motor Company, 139 W.Va. 711, 81 S.E.2d 78; Laphew v. Consolidated Bus Lines, Inc., 133 W.Va. 291, 55 S.E......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT