Clay v. Walkup, No. 10992

CourtSupreme Court of West Virginia
Writing for the CourtBERRY
Citation107 S.E.2d 498,144 W.Va. 249
PartiesAnona J. CLAY, Administratrix, etc. v. W. O. WALKUP et al.
Decision Date17 March 1959
Docket NumberNo. 10992

Page 498

107 S.E.2d 498
144 W.Va. 249
Anona J. CLAY, Administratrix, etc.
v.
W. O. WALKUP et al.
No. 10992.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 4, 1959.
Decided March 17, 1959.

Page 499

Syllabus by the Court

1. The testimony of witnesses under ordinary circumstances should be restricted to facts within their personal knowledge and conclusions with respect to matters in issue ordinarily should not be received in evidence.

2. 'Whether the negligence of two or more persons is concurrent, and taken together proximately causes or contributes to the injury of another person is, as to all matters of fact, a question for jury determination and a verdict of a jury based upon facts will not be disturbed if it is supported by substantial evidence.' Pt. 2, syllabus, Lewis v. Mosorjak, W.Va., 104 S.E.2d 294.

3. A driver of a vehicle on the highway should keep a proper [144 W.Va. 250] lookout and exercise reasonable control over the vehicle at all times in order to avoid an accident, and such lookout and control as is necessary should be observed as conditions warrant.

Sanders & White, William H. Sanders, Ben B. White, Jr., George A. Daugherty, Princeton, for plaintiffs in error.

Myles & Myles, T. A. Myles, T. E. Myles, Fayetteville, for defendant in error.

BERRY, Judge.

This is an action of trespass on the case for wrongful death. The action was brought by Anona J. Clay, Administratrix of the estate of A. B. Clay, deceased, plaintiff below and defendant in error, hereinafter referred to as plaintiff, against W. O. Walkup, Norman Herbert Keller and Mary S. Keller, defendants below and plaintiffs in error, hereinafter referred to as defendants. The defendant Walkup, brother of the plaintiff, was the driver and owner of the automobile in which the plaintiff's decedent was riding at the time of the accident, one of the other defendants, Norman H. Keller, being the driver of the other vehicle involved in said accident and Mary S. Keller being the owner of the vehicle. The morning the case was called for trial the plaintiff and defendant Walkup announced that a settlement had been made between them for the amount of $7,000 and the case proceeded to trial against the two remaining defendants, Norman H. Keller and Mary S. Keller, with the stipulation that settlement mentioned

Page 500

above would be used as a credit upon any verdict that might be returned in favor of the plaintiff. A stipulation was entered into by counsel for the respective parties with regard to the admission[144 W.Va. 251] of certain photographs to be used as evidence, the death of plaintiff's decedent being the result of injuries received in the accident, and that the defendant, Norman H. Keller, was using the automobile owned by his wife at the time of the accident within the purview of the family purpose doctrine. The jury returned a verdict in the amount of $10,000 in favor of the plaintiff and the trial court entered judgment against the Kellers in the amount of $3,000, to which judgment a writ of error and supersedeas was granted by this Court.

The accident occurred on State Route 20 in Summers County, West Virginia, on October 24, 1956. The defendant, Norman H. Keller, was driving his automobile in a northerly direction on said highway. The car driven by defendant Walkup, with plaintiff's decedent riding in the front seat and another passenger, Paul Halsey, riding in the rear seat, was proceeding on said highway in a southerly direction. When Walkup was about 100 or or 150 feet from a filling station on his left side of the highway, he started turning his car gradually to the left for the purpose of entering said filling station to obtain some gasoline. At the time Walkup started turning to the left side of the highway the defendant Keller was proceeding toward Walkup from the opposite direction with an unobstructed view of approximately one-quarter of a mile. Keller testified that he first observed the Walkup car proceeding on its right side of the road some distance from where the filling station was located. He stated that he was driving about 50 miles per hour and that he noticed the Walkup car cut across the road, and that when he was within about 150 feet from the Walkup car he started to apply his brakes to some extent, and when he was about 50 feet from the Walkup car it started to cut back to its right side of the road and that was when he applied his brakes forcibly. The witness, Halsey, stated that he saw the Keller car some distance away and when it was about 200 or 250 feet away the plaintiff's decedent said to Walkup 'Look out, Walkup, there comes one' at which time Walkup started back [144 W.Va. 252] across the road to the right. Halsey stated that he did not know the speed the Keller car was being driven but it was 'pretty fast'. Walkup stated that he was not too clear about what happened in the accident because of a severe blow received on his head but that he...

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16 practice notes
  • Reilley v. Byard, No. 12081
    • United States
    • Supreme Court of West Virginia
    • May 2, 1961
    ...Section 238, pages 371-72; The Law of Automobiles in Virginia and West Virginia, Volume 1, Section 18, pages 52-54; Clay v. Walkup, W.Va. 107 S.E.2d 498; Lewis v. Mosorjak, 143 W.Va. 648, 104 S.E.2d 294; Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672; Walker v. Robertson, 141 W.Va. 563, 91 ......
  • Overton v. Fields, No. 12006
    • United States
    • Supreme Court of West Virginia
    • December 20, 1960
    ...is not admissible. Point 4, syllabus, Lively v. Virginian Railway Company, 104 W.Va. 335, 140 S.E. 51. See also Clay v. Walkup, W.Va., 107 S.E.2d 498; Mullins v. Baker, W.Va., 107 S.E.2d 57; Thrasher v. Amere Gas Utilities Company, 138 W.Va. 166, 75 S.E.2d 376; Stone v. Safe Insurance Compa......
  • Sydenstricker v. Vannoy, No. 12551
    • United States
    • Supreme Court of West Virginia
    • November 15, 1966
    ...408, 114 S.E.2d 913; Lawrence v. Nelson, 145 W.Va. 134, 113 S.E.2d 241; Shreve v. Faris, 144 W.Va. 819, 111 S.E.2d 169; Clay v. Walkup, 144 W.Va. 249, 107 S.E.2d 498; Lewis v. Mosorjak, 143 W.Va. 648, 104 S.E.2d 294; Workman v. Wynne, 142 W.Va. 135, 94 S.E.2d 665; Prettyman v. Hopkins Motor......
  • Lester v. Rose, No. 12177
    • United States
    • Supreme Court of West Virginia
    • March 11, 1963
    ...25 S.E.2d 636; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164; Lewis v. Mosorjak, 143 W.Va. 648, Page 92 104 S.E.2d 294; Clay v. Walkup, 144 W.Va. 249, 107 S.E.2d It was held in point 2 of the syllabus in the case of Lewis v. Mosorjak, supra, that: 'Whether the negligence of two or more pe......
  • Request a trial to view additional results
16 cases
  • Reilley v. Byard, No. 12081
    • United States
    • Supreme Court of West Virginia
    • May 2, 1961
    ...Section 238, pages 371-72; The Law of Automobiles in Virginia and West Virginia, Volume 1, Section 18, pages 52-54; Clay v. Walkup, W.Va. 107 S.E.2d 498; Lewis v. Mosorjak, 143 W.Va. 648, 104 S.E.2d 294; Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672; Walker v. Robertson, 141 W.Va. 563, 91 ......
  • Overton v. Fields, No. 12006
    • United States
    • Supreme Court of West Virginia
    • December 20, 1960
    ...is not admissible. Point 4, syllabus, Lively v. Virginian Railway Company, 104 W.Va. 335, 140 S.E. 51. See also Clay v. Walkup, W.Va., 107 S.E.2d 498; Mullins v. Baker, W.Va., 107 S.E.2d 57; Thrasher v. Amere Gas Utilities Company, 138 W.Va. 166, 75 S.E.2d 376; Stone v. Safe Insurance Compa......
  • Sydenstricker v. Vannoy, No. 12551
    • United States
    • Supreme Court of West Virginia
    • November 15, 1966
    ...408, 114 S.E.2d 913; Lawrence v. Nelson, 145 W.Va. 134, 113 S.E.2d 241; Shreve v. Faris, 144 W.Va. 819, 111 S.E.2d 169; Clay v. Walkup, 144 W.Va. 249, 107 S.E.2d 498; Lewis v. Mosorjak, 143 W.Va. 648, 104 S.E.2d 294; Workman v. Wynne, 142 W.Va. 135, 94 S.E.2d 665; Prettyman v. Hopkins Motor......
  • Lester v. Rose, No. 12177
    • United States
    • Supreme Court of West Virginia
    • March 11, 1963
    ...25 S.E.2d 636; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164; Lewis v. Mosorjak, 143 W.Va. 648, Page 92 104 S.E.2d 294; Clay v. Walkup, 144 W.Va. 249, 107 S.E.2d It was held in point 2 of the syllabus in the case of Lewis v. Mosorjak, supra, that: 'Whether the negligence of two or more pe......
  • Request a trial to view additional results

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