Cross v. Noland
| Decision Date | 11 July 1972 |
| Docket Number | No. 12909,12909 |
| Citation | 156 W.Va. 1,190 S.E.2d 18 |
| Court | West Virginia Supreme Court |
| Parties | Melville V. CROSS v. R. E. NOLAND et al., Defendants and Third Party Plaintiffs, v. CITY OF WELLSBURG, etc., et al., Third Party Defendants. |
Syllabus by the Court
1. 'The violation of a statute or an ordinance is prima facie actionable negligence when it is the natural and proximate cause of an injury.' Point 4, Syllabus, Lewis v. McIntire, 150 W.Va. 117 (144 S.E.2d 319).
2. 'Giving an instruction based upon a theory which is without support in the evidence, is error.' Point 1, Syllabus, Newsom v. Meade, 102 W.Va. 489 (135 S.E. 604).
3. 'Instructions must be based upon the evidence and an instruction which is not sustained by evidence should not be given.' Point 1, Syllabus, Hollen v. Linger, 151 W.Va. 255 (151 S.E.2d 330).
4. 'It is reversible error to give an instruction which is not sustained by the evidence.' Point 2, Syllabus, Groves v. Groves, 152 W.Va. 1 (158 S.E.2d 710).
Edward A. Zagula, Weirton, for appellant.
James R. Ewing, Clowes, McDermott & Ewing, Wheeling, for appellees Noland, and others.
This is a civil action instituted in the Circuit Court of Brooke County, in which the plaintiff, Melville Cross, seeks to recover damages from the defendants, R. E. Noland and Edward Noland Plumbing, for injuries she alleges to have received as a result of the negligence of said defendants. Upon trial of this case the jury returned a verdict for the defendant and the court entered judgment on that verdict. This is an appeal from the final order entering that judgment.
Defendant R. E. Noland, the owner and operator of Edward Noland Plumbing, was employed by Mr. Ash Martin to construct a water pipeline to his residence. In undertaking this endeavor it became necessary for the defendant to dig an excavation or trench in an alley between 9th and 10th Streets in the City of Wellsburg, leading from Main Street back toward the Martin home. The trench in which the water line was laid was approximately thirty inches deep and two feet wide. After the water line was placed, the defendant, with the assistance of his sixteen year old son, Ray Taylor, and another inexperienced youth, undertook to backfill the ditch. This was accomplished by shoveling dirt into the ditch by the two adults while the youths 'stamped it down with their feet and used a bar.' A witness, who was a civil engineer, testified that the backfilling was done improperly. Admittedly, it was not done in compliance with the provision of a municipal ordinance which, among other things, required that the '(c)ompacting shall be done by mechanical tappers or vibrators'.
Two or three days after the completion of this work by the defendant, the plaintiff, on Sunday, August 20, 1961, at about 10:30 P.M., drove her 1953 Chrysler automobile into this alley, intending to park her car in the garage which she had leased and which was situate in said alley. According to her testimony she was driving between five and ten miles per hour. It was raining lightly and she had her headlights on, giving her a clear and distinct view of the roadway in the alley. As she drove into the alley the left front wheel of her car sunk down into a hole to a depth equal to one half of the wheel. She testified that there was no visible hole into which she drove but that As the result of this incident the plaintiff said that she was thrown violently to the top of the car and received the injuries of which she here complains.
Relative to her alleged injuries, Mrs. Cross testified that subsequent to the accident she consulted a local osteopath because of the painful condition of her back. Later she went to see Dr. George R. Clarke, an orthopedic surgeon, who treated her on approximately fifty different occasions and who finally surgically removed her coccyx. Upon being asked if her disability was the result of the subject accident, Dr. Clarke testified: 'I think there is a definite relationship between the accident described and the symptoms and complaints for which I treated Mrs. Cross.' Dr. Clarke's testimony was the only medical evidence in the record.
In her complaint the plaintiff alleges that the defendant 'wholly failed to properly fill said ditch, and such failure constitutes negligence and a breach of duty to the plaintiff, and which negligence proximately caused the injuries hereinafter complained of.' She also complained that the defendant had violated a city ordinance relating to backfilling. The defendant, of course denies that he was negligent and further asserts that any injury experienced by the plaintiff was occasioned by contributory negligence and assumption of risk by the plaintiff.
After the plaintiff and defendant rested their respective cases, the court read its charge and submitted certain instructions to the jury. Among other matters, the charge and instructions presented for jury consideration the defendant's theory of defense, that is, that the plaintiff was guilty of contributory negligence and had assumed certain risk by her actions. Timely objections were made by the plaintiff to the giving of instructions of this theory, it being asserted that there was no evidence in support thereof.
On this appeal the plaintiff relies on the following three assignments of error: (1) the trial court should have directed a verdict because the defendant failed to rebut the presumption of negligence which existed by reason of the defendant's violation of a municipal ordinance relating to backfilling practices of ditches in public ways; (2) there was no evidence to support an instruction or the court's charge on contributory negligence; and (3) there was no evidence to support an instruction on assumption of risk.
The first assignment of error is without merit. While it is a valid proposition of law that a violation of a municipal ordinance creates a prima facie case of negligence, and the jury was so instructed, such violation does not constitute actionable negligence unless it was proved to be the proximate cause of the injury. Lewis v. McIntire, 150 W.Va. 117, 144 S.E.2d 319; Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726; Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913. The jury having been properly instructed on this principle of law, it was their prerogative to determine whether or not the violation of the ordinance was the proximate cause of the injury. Therefore, the trial court did not err in refusing to direct a verdict.
In deciding the validity of the next assignment of error the evidence must be examined to determine if it was sufficient to support an instruction on contributory negligence. While the defendant is entitled to an instruction reflecting his theory of defense, such instruction may not be given unless it is supported by the evidence. Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710; Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186; Mulroy v. Co-Operative Transit Co., 142 W.Va. 165, 95 S.E.2d 63; Newsom v. Meade, 102 W.Va....
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