Butler v. Smith's Transfer Corp.

• Decision Date: 13 November 1962
• Docket Number: No. 12148,12148
• Citation: 147 W.Va. 402,128 S.E.2d 32
• Court: West Virginia Supreme Court
• Parties: Rodye H. BUTLER et al. v. SMITH'S TRANSFER CORP., etc.

Page 32

128 S.E.2d 32

147 W.Va. 402

Rodye H. BUTLER et al. v. SMITH'S TRANSFER CORP., etc.

No. 12148.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1962.

Decided Nov. 13, 1962.

Syllabus by the Court

1. Stipulations or agreements made in open court by the parties in the trial of a case and acted upon are binding and a judgment founded thereon will not be reversed.

2. 'A stipulation may be entered into between the parties, where a settlement has been made by one joint tort-feasor and another is being sued for the same cause of action, agreeing that the amount of any verdict will be reduced by the amount of such settlement if the jury returns a verdict for the plaintiff and the court shall then deduct from the verdict the amount of settlement and enter judgment thereon for the difference.' Syl. pt. 4 Hardin v. New York Central, 145 W.Va. 676 .

3. 'When property is completely destroyed, the amount of recovery is measured by the market value at the time of the destruction.' Stenger v. Hope Natural Gas Co., 141 W.Va. 347, 355 .

4. If one tort-feasor is guilty of negligence and another tort-feasor is also guilty of negligence by virtue of acts or omissions which occur in point of time and place after the first tort-feasor's act of negligence, both of which coupled together proximately caused damage or injury to a plaintiff, both tort-feasors would be guilty of concurrent negligence and both would be liable for damage or injury suffered by a plaintiff as a result of such negligent acts.

5. Reasonable inferences may be drawn from physical facts and circumstances surrounding an accident. This constitutes circumstantial evidence in connection therewith and may be as strong as direct evidence.

6. 'Ordinarily the question as to whether a prima facie case made by a plaintiff by circumstantial evidence has been overcome by direct testimony of the defendant in conflict therewith is for the jury.' Pt. 2, syllabus, Webb v. Harrison, 127 W.Va. 124 [31 S.E.2d l86].

7. Where the evidence is conflicting and reasonable men may draw different conclusions the question of negligence is for the jury.

8. Whether the negligence of two tort-feasors was concurrent and taken together proximately caused or contributed to the damage to plaintiffs' property is a question for jury determination and a verdict of the jury based upon sufficient facts and supported by substantial evidence will not be disturbed.

9. 'Duplication of instructions in neither necessary nor desirable.' Pt. 6, syllabus, Wilson, Adm'x v. Edwards, 168 W.Va. 613 .

Frederick O. Byrer, Charles Town, Kuykendall & Whiting, J. Sloan Kuykendall, Winchester, Va., for appellant.

Martin and Seibert, Clarence E. Martin, Jr., Martinsburg, James M. Mason, III, Charles Town, for appellees.

BERRY, Judge.

This case involves an action of trespass on the case under the old procedure, before the new rules became effective, instituted by Rodye H. Butler and Meda J. Butler, plaintiffs, against Smith's Transfer Corporation of Staunton, Virginia, a Corporation, and Peachey W. Riley, in the Circuit Court of Jefferson County. A settlement was made with the defendant Peachey W. Riley, and on motion of the plaintiffs he was dismissed as a party to this action.

The jury returned a verdict in favor of the plaintiffs in the amount of $13,825.00 on May 12, 1961, for damages done to their house and personal property when struck by a truck owned by the defendant, Smith's Transfer Corporation, about 2:20 a. m. on August 4, 1959. The trial court entered judgment for the plaintiffs on June 5, 1961, in the amount of $11,038.68, which amount was the jury verdict less the amount paid to the plaintiffs by Peachey W. Riley, all of which was done in accordance with a stipulation contained in a pre-trial order dated May 10, 1961. The defendant's motions to set aside the verdict, grant a new trial and enter judgment for the defendant were overruled by an order of the trial court dated June 10, 1961. Upon petition to this Court by the Smith's Transfer Corporation an appeal and supersedeas to said judgment was granted on December 11, 1961. The case was submitted to this Court on arguments and briefs at the September, 1962, Term.

This action arose out of an accident between the defendant's truck which was driven by Kenneth James Fletcher, an employee of said Company, and a 1948 Chevrolet automobile owned and operated by Peachey W. Riley, on U. S. Route 340, at Ripon, West Virginia, between Berryville, Virginia and Charles Town, West Virginia. The defendant's truck was traveling in a northerly direction from Berryville toward Charles Town, and the Chevrolet automobile was traveling in a southerly direction from Charles Town toward Berryville at the time of the accident. The road or hibhway was a blacktop 36 feet five inches in width and divided into two equal lanes at the place of the accident. It had been raining and the road was slick. The defendant's truck was being driven in about the center of its proper lane when the Riley car rounded a curve in the road and was driven or skidded into the defendant's truck. The Riley automobile was knocked back 73 feet nine inches where it came to rest diagonally across the middle of the highway facing the opposite direction from which it was proceeding before the accident occurred. The defendant's truck ran some 25 feet on the highway, where it left said highway by running over a curb about six inches in height, dropped about two feet into the plaintiffs' yard, and then ran about sixty-seven feet where it struck the plaintiffs' house, which was constructed of cinder blocks and frame, ran into the front room and down into the basement before it stopped, practically demolishing the house as a result thereof. The plaintiffs and the other occupants of the house, who were sleeping at the time, were trapped and could not get out without help. The furniture and household effects could not be removed from the house after the accident, and when the truck was later removed the house fell in, making it a total loss. The uncontradicted testimony with regard to the salvage after the truck was removed is to the effect that nothing of value could be obtained and it would cost about $350.00 to remove the debris.

The only witness to testify with regard to this accident was the driver of defendant's truck, Kenneth James Fletcher. Riley, the driver of the automobile, apparently was not present during the trial and did not testify. The driver of the truck testified that before the accident the truck was traveling up a slight grade and that he was driving the truck in low-fifth gear, which would not allow the truck to exceed 40 miles per hour. There was a sign just before entering the town of Ripon where the accident occurred indicating a reduction of speed, and advising that the speed limit was 40 miles per hour. The truck had a tachometer on it, which was removed by an employee of the defendant soon after the accident occurred, although it is contended by the plaintiffs that the tachometer was not checked to ascertain if it was in good condition, as was the truck when it left Winchester at the beginning of the trip. The tachometer indicated that the maximum speed at which the truck had been driven at any time before the accident was 45 miles per hour, and immediately before the accident it was traveling at about 38 miles per hour, which speed was reduced to 28 miles per hour, at which time a sudden disturbance occurred, as indicated by an unusual registering on the tachometer. The truck driver stated that the Riley care was being driven at a faster rate of speed than the truck he was driving at the time of the accident. The truck was 44 feet in length and was carrying a load of 23,000 pounds.

A state policeman testified on behalf of the plaintiffs that he had looked at the tachometer but was not too familiar with such instrument. He testified, however, that the tachometer indicated the truck was being driven at 39.2 miles an hour. The state policeman further testified that there were no skid marks on the road but that cut marks were made no the highway by a vehicle and that such marks appeared on defendant's side of the road.

The driver of the defendant's truck stated that when the Riley car suddenly came across the highway into his lane of traffic he applied the brakes; that the bumper was pushed down on the left front wheel of the truck; and he cut or turned the truck to the right in an attempt to avoid the accident.

During the trial the defendant objected to the testimony of plaintiffs with regard to damages to both the house and personal property on the grounds that they were not properly proved. Plaintiffs introduced evidence by witnesses who stated that they knew the value of property in the area where the plaintiffs' house was located, and that the market value of said house at the time it was destroyed was $11,500.00. The plaintiff, Rodye H. Butler, testified with regard to the market value of the household property and personal effects at the time they were destroyed by using an itemized list, which was objected to on several different occasions by the defendant. Such testimony could have been perhaps more detailed and accurate. However, the defendant agreed by stipulation to allow the itemized list, from which the plaintiff was testifying relative to the damages of such personal property, to be introduced as evidence, with the market value of each item as stated on said list to be considered by the jury regarding this claim for damages.

The defendant contended during the trial that it had the right to introduce into evidence the amount of the settlement made by Peachey W. Riley to the plaintiffs. The court would not permit this to be done, over the objection of defendant, but did give him the opportunity to vouch the record with this matter, which was not done.

At a pre-trial hearing the defendant had requested that the plaintiffs be...