Clay v. Walkup
| Decision Date | 17 March 1959 |
| Docket Number | No. 10992,10992 |
| Citation | 107 S.E.2d 498,144 W.Va. 249 |
| Court | West Virginia Supreme Court |
| Parties | Anona J. CLAY, Administratrix, etc. v. W. O. WALKUP et al. |
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 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.
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 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 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 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 remembered seeing the Keller car before the accident and that at first it looked small and just before the accident it looked large. He could not testify as to the distance but said that the Keller car got 'big mighty quick'. He also testified that the Keller car was running 'pretty fast'.
There is no conflict in the evidence that the Keller car made skid marks on the highway for about 120 feet, the last 30 feet being black skid marks. At the time of the impact the Walkup car was knocked back about 2 feet. The defendant Keller testified that when he first saw the Walkup car it was about 1,500 feet from him. The state police who investigated the accident stated that it would take about 186 feet to stop a car running 50 miles per hour. This included both the reaction time and the time required for the actual application of the brakes. Of course when the brakes are first applied they will not cause skid marks on the road unless they are applied with great force and it would appear from the skid marks and the impact of the collision that the Keller car was being driven faster than 50 miles per hour. Although the witness Halsey gave a statement to the state police that the defendant Keller was not speeding at the time, all of the evidence taken together would indicate otherwise. The cars collided about the center of the highway.
On cross-examination the witness Halsey was asked if he thought the collision would have occurred had the Walkup car continued on its course toward the filling station, or stopped. Halsey answered that he did not believe it would have. An objection was made to this question and answer, which was sustained by the trial court and this is assigned as one of the grounds of error.
This question calls for a conclusion of the witness and under ordinary circumstances should not be received in evidence. 32 C.J.S. Evidence § 438; 7 Michie's Jurisprudence, Evidence, § 179, 558. Witnesses should testify to the facts as to what was done or not done and allow the jury to draw conclusions or inferences therefrom. See Hendricks v. Monongahela West Penn Public Service Co., 111 W.Va. 576, 163 S.E. 411 and Farris v. Cabin Creek Consol. Coal Co., 4 Cir., 220 F. 813. Such matters usually rest within the discretion of the trial court and its rulings thereon will not ordinarily be disturbed unless such discretion has been abused. Lewis v. Mosorjak, W.Va., 104 S.E.2d 294, 303. Therefore, we are of the opinion that no error was committed by the trial court in refusing to allow the jury to consider this statement.
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