C. F. Robertson v. J. C. Hobson, (No. 7515)

• Decision Date: 24 October 1933
• Docket Number: (No. 7515)
• Citation: 114 W.Va. 236
• Court: West Virginia Supreme Court
• Parties: C. F. Robertson v. J. C. Hobson

114 W.Va. 236

C. F. Robertson

v.J. C. Hobson

(No. 7515)

Supreme Court of Appeals of West Virginia.

Submitted October 10, 1933.

Decided October 24, 1933.

(Rehearing denied December 12, 1933)

1. instructions

An instruction on the unanimity of the jury is ordinarily given as a matter of course. But such an instruction embodies principles so generally understood by jurors and so fully covered by the oath of the juror, that refusal to give the instruction would rarely, if ever, constitute prejudicial error.

2. Instructions

Point 2 in the syllabus of Emery v. Monongahela, 111 W. Va. 699, 163 S. E. 620, disapproved.

3. Instructions

An inaccurate hypothesis should not he presented in an instruction.

4. Instructions

"Duplication of instructions is unnecessary and undesirable." Drake v. Hardware Co., 110 W. Va. 63, 157 S. E. 35.

5. Instructions

When an instruction has been given fairly presenting the rule requiring the plaintiff to prove his case by a preponderance of the evidence, the trial court is not required to instruct further on such hypotheses relating to that preponderance as the ingenuity of counsel may suggest.

6. Negligence

The care required by law of one in a sudden emergency is that of the average person under like circumstances.

7. Negligence

Reasonable care is ordinarily a question for the jury.

Error to Circuit Court, Raleigh County.

Action by C. F. Robertson against J. C. Hobson. To review a judgment in favor of the plaintiff, the defendant brings error.

Affirmed.

Maxwell, Sayre & Bowers, for plaintiff in error.

John Q. Hutchinson, Clay 8. Grouse and Millard French, for defendant in error.

Hatcher, Judge:

This is an action for damages for personal injuries. The plaintiff recovered a verdict and judgment, and from the latter the defendant secured a writ of error.

The plaintiff, aged seventy-two, was struck by defendant's automobile on the highway about six a. m., February 16, 1932. The morning was dark and foggy. The plaintiff testified that he was crossing the highway from east to west when he saw the automobile about one hundred yards distant, approaching from the south; that he was then about the center of the highway and stepped "brisker'' until he was about two steps beyond the hard surface and to the left of the approaching car; that he turned facing the car and took a step or two when he saw a stray dog, which was accompanying him, run out into the highway from his side; that he stopped and threw the light from a flashlight he was carrying (in his left hand) on the dog to see what would happen to it upon which, in his language, '' I never realized another thing. The car just swept me clear off of the earth."

The defendant testified that just prior to the accident he was driving at the rate of from thirty-five to forty miles an hour; that he first saw the plaintiff at a distance of fifty or sixty yards and that a dog was with him; that the plaintiff was approaching the car on the right side of the highway (from defendant's position) carrying a flashlight and with his head down; that the dog was in the center of the highway; that as he (defendant) drew nearer, he veered to the lefthand side of highway in order to pass the man and dog, took his foot off the accelerator and sounded the horn; that the man then looked up and commenced to run "quartering like" across the highway, with his arms outspread and with a light in one hand and a dinner bucket in the other; that he (defendant) "cut" still further to the left ("almost at right angles") and applied his brakes, but the man ran into the right side of the car, and that it was stopped within its length after the collision.

There were indentations in the fender and hood on the right side of the car which defendant testified were made by the impact with the body of plaintiff, his head striking the hood. The right headlight of the car was broken, for which defendant accounted only by conjecture. Plaintiff received contused wounds on the left arm, on the "crest of the left ilium" (rear hip bone) and on the upper half of the calf of the right leg. He had a small abrasion on the top of his head and suffered either a fracture at the base of the skull or a contusion of the brain. The hard surface of the highway at the place of the accident was about nineteen feet in width, with shoulders a number of feet wide. Immediately after the collision the plaintiff was lying unconscious several feet west of the hard surface and between it and. the tracks of the automobile in the berm, etc. The automobile had stopped beyond him, against a fence which is fourteen feet west of the hard surface.

The defendant contends that the physical facts disprove the plaintiff's testimony. It is true that under a strict construction of plaintiff's testimony in connection with the physical facts, injuries on the front of his body rather than on the side, would be expected. But the plaintiff does not attempt to describe in detail either his own physical movements or the course of the automobile after he threw the light on the dog. Lack of detail alone does not discredit him. The jury could well attribute that lack to confusion and to involuntary action which the plaintiff's memory failed to grasp. A reflex turning of his body from the oncoming car would have placed his left side next to the car.

The defendant makes the further contention that he was confronted with an emergency danger from the dog if plaintiff's testimony be credited, and danger to plaintiff if defendant's testimony be accepted and that under either view of the evidence he acted as a man of ordinary prudence would have done, and therefore was not negligent. His instructions Nos. 8 and 9B fairly submitted each exigency to the jury. Whether his conduct conformed to his contention is essentially a jury question. "Where a course of conduct adopted in a sudden emergency is alleged to be negligent, the question for determination is not whether the party charged acted according to his best judgment but is whether he exercised the prudence of the average person under the same circumstances; and that question is one of fact for the jury and not one of law for the court.'' Carney v. Railway, 72 N. H. 364, 57 A. 218. Accord: Lavenstein v. Maile, 146 Va. 789, 132 S. E. 844; 45 C. J., subject Negligence, sec. 92. It appears that the shoulders of the highway were as safe for automobile travel as far to the right as to the left, and that defendant knew of that condition. Considering the evidence from plaintiff's standpoint (as the jury did) the defendant, in the exercise of ordinary care, should have been cognizant that plaintiff had crossed the highway to defendant's left and he should have seen plaintiff when he threw the light from the left on the dog. Charging the defendant with that information, the jury was warranted in finding that the exercise of ordinary prudence would have caused him to have veered to the right instead of the left. "The actor's knowledge (in an emergency) is a material fact. The knowledge he would have had, if he had been reasonably vigilant, is chargeable to him and is also to be considered." Bevigny v. Company, 81 N. H. 311, 313, 125 A. 262, 263. Accord: Lederer v. Connecticut Co., 95 Conn. 520, 527, 111 A. 785.

The defendant charges error because his instructions Nos. 10, 15, 16 and 17 were refused by the court.

No. 10 submitted to the jury an emergent situation on the premise that plaintiff "ran into the highway and in close proximity to defendant's car." That premise does not accord accurately with defendant's narrative of plaintiff's actions. An inaccurate hypothesis should not be submitted to the jury. Hutchinson v. Parkersburg, 25 W. Va. 226. Moreover, No. 10, in effect duplicates No. 8, which was given. "Duplication of instructions is unnecessary and undesirable." Drake v. Hardware Co., 110 W. Va. 63, 157 S. E. 35.

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