Cook v. Harris
| Decision Date | 15 June 1976 |
| Docket Number | No. 13571,13571 |
| Citation | 159 W.Va. 641,225 S.E.2d 676 |
| Court | West Virginia Supreme Court |
| Parties | Melissa P. COOK, etc., et al. v. Wanda C. HARRIS, as Executrix, etc., et al., and Andy Kurucz, Jr. |
Syllabus by the Court
A trial judge is not merely a referee but is vested with discretion in supervising verdicts and preventing miscarriages of justice, with the power and duty to set a jury verdict aside and award a new trial if it is plainly wrong even if it is supported by some of the evidence, and when a trial judge so acts, his decision, being in discharge of his power and duty to pass upon the weight of the evidence to that limited extent, is entitled to peculiar weight and will not be disturbed on appeal unless clearly unwarranted.
James E. McNeer, McWhorter, McNeer, Highland & McMunn, Clarksburg, for appellant Kurucz, Jr.
Talbott, Hill & Luff, Caton N. Hill, Jr., Phillippi, Wilson, Frame & Rowe, Clark B. Frame, Morgantown, for appellees.
In this action to recover damages for personal injuries arising out of an automobile collision which occurred on January 10, 1970, on U. S. Route No. 250 in Barbour County, we affirm the action of the trial court in setting aside a jury verdict in favor of both defendants and in granting a new trial to the plaintiffs.
This appeal was sought and obtained by Andy Kurucz, Jr., one of the defendants. He contends that the issue of negligence under the evidence was properly one for jury determination, that the jury resolved that issue in favor of the defendants, and more particularly the defendant-appellant Kurucz, and that, therefore, the trial court erred in setting the jury verdict aside and granting the plaintiffs a new trial.
At the time of this accident, the infant plaintiff, Melissa P. Cook, was a passenger in an automobile owned by Frederick W. Harris and driven by Debra Kay Harris, his daughter, and was riding in the front seat between the driver and another passenger, Pamela Sue Bartlett. They were proceeding in a northerly direction on a comparatively straight and level section of highway at a speed variously estimated at between 40 and 55 miles per hour.
It was approximately 10:00 p.m.; the weather was clear but cold; the highway, 22 feet in width, was clear except for some spots of ice; but the berms extending for several feet on either side of the highway were covered with snow as a result of the highway having been cleared at an earlier time.
The defendant Kurucz, accompanied by Douglas Edward Sinsel, was also driving in a northerly direction when car trouble developed causing his automobile to lose power or stall and come to a stop. The testimony on behalf of the defendant Kurucz was that he and Sinsel endeavored to push the automobile onto the easterly berm but were unable to get it completely off the highway because of the show which was on the berm. Flashlights were obtained by Sinsel and the defendant Kurucz, and while Sinsel looked under the hood of the automobile in an attempt to determine what had caused the car to stop, Kurucz apparently stood by the driver's door with a flashlight for the purpose of warning oncoming vehicles.
Within a few minutes of the time that the Kurucz automobile stopped, another automobile being driven in a southerly direction by William Scott McCoy pulled off onto the westerly berm of the highway opposite the Kurucz automobile, and McCoy offered assistance.
The defendant Harris testified that she first saw the red tail lights of the Kurucz automobile when she was not more than six car lengths away from it, and that she immediately applied her brakes but could not stop before she struck the left rear portion of the Kurucz automobile. The evidence is undisputed that at the point of impact the Kurucz automobile was approximately 3 to 4 feet east of the center line thus clearly establishing that the rear of the Kurucz automobile was entirely on the travelled portion of the highway.
Melissa Cook, Debra Kay Harris and Pamela Sue Bartlett testified that they did not see anyone signalling with a flashlight as they were approaching the scene of the accident.
Following the impact with the Kurucz automobile, the automobile in which the plaintiff was riding veered across the highway and struck the McCoy automobile.
The infant plaintiff and her father instituted this action to recover damages from Kurucz and Harris for injuries suffered by the infant plaintiff and expenses incurred as a consequence thereof, and the jury found in favor of both defendants.
In support of its contention that the trial judge erred in setting aside the jury verdict, Kurucz cites numerous cases which, although not similar factually to the instant case, stand for the generally recognized propositions that when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, it is the peculiar province of the jury to determine questions of negligence and contributory negligence; that 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 that those facts which the jury might properly...
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