Dangerfield v. Akers
| Decision Date | 13 February 1945 |
| Docket Number | 9618. |
| Citation | 33 S.E.2d 140,127 W.Va. 409 |
| Parties | DANGERFIELD v. AKERS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Where in the trial of an action at law before a jury the plaintiff and defendant each ask for, and the trial court gives instructions based on the supposed existence of evidence on a single point in the case, when in fact there is no evidence on which such instructions could properly be given, the error is one invited by the litigants, and neither can take advantage thereof in this Court. And where such case involves conflicting testimony and circumstances, as to matters of fact, and the case has been fairly tried, and the jury otherwise properly instructed, the verdict of the jury should not be set aside unless plainly contrary to the weight of the evidence, or without any evidence to support it.
Fletcher W. Mann, of Beckley, for plaintiff in error.
Ashworth & Sanders, of Beckley, for defendant in error.
James H. Akers, the defendant below, complains of the action of the Circuit Court of Raleigh County, in setting aside a jury verdict in his favor, and granting a new trial, in a personal injury accident in which George Dangerfield is plaintiff. The case has been twice tried, the first trial resulting in a failure on the part of the jury to agree. It grows out of a traffic accident, and the crucial question is which of the two vehicles involved was traveling on the wrong side of the highway, and on this point the evidence is conflicting on practically every question of fact. The parties will be referred to as they stood in the court below.
The accident occurred on the 5th day of January, 1943, on the public highway running between Beckley and Mullens, and in the Town of Sophia, in Raleigh County, directly in front of a filling station and opposite Deem Street, which connects with the highway at that point. The plaintiff was one of two guest passengers riding in an automobile owned and operated by one N. G. Meadows, and was seated in the rear, the other guest passenger, Adams, occupying the front seat with the driver. There was snow and ice on the highway, but it was thawing particularly in the center. Meadows was operating his automobile in the direction of Mullens. He testified that up to a point some four hundred feet from the filling station he occupied the center of the highway, but at that point he turned to the right and from that time on, and at the time of the accident, kept his automobile on his right side of the highway. In this statement he is corroborated by his guests. He says that he looked ahead and saw defendant's truck beyond the filling station, on its right side of the highway which position it kept until it neared the filling station, when it turned to the left and in the direction of Deem Street, and in the line of travel of the automobile he was driving, and too late for him to avoid the collision which followed. Both the plaintiff and Adams corroborate these statements, and in addition say that the defendant, when he turned his truck to the left was looking in the direction of Deem Street indicating to them an intent on his part to enter that street where, the evidence shows, he resided.
The defendant, who was the sole occupant of his one and one-half ton truck, approximately twenty-four feet in length, and who was driving in the direction of Beckley, says that he saw the Meadows automobile approaching when it was some eight hundred feet ahead of him; that the automobile turned to its left as if to enter the filling station; that he assumed it would enter the station grounds and continued his course without paying further attention thereto; that he was driving on his right side of the highway; that at no time did he operate his truck over the center line thereof; that when he approached the filling station the Meadows automobile appeared from his right and in his path, too late to prevent a collision between the two vehicles; that he was on his way to Mabscott, a point between Sophia and Beckley; and had no intent of entering Deem Street, and was not looking in that direction. He introduced two disinterested witnesses, one of whom, the Chief of the Police of Sophia, testified that he examined defendant's right side of the highway within a few minutes after the accident, and the same being partially covered by snow and ice, he was able to locate the tracks of the automobile driven by Meadows; that the left wheel thereof was eighteen inches over on the left or wrong side of the highway for a distance of twenty-five or thirty feet back of the automobile after it was found after the collision; that Meadows had chains on his automobile, which made it possible to trace its tracks. Another witness, who examined the highway at the same time, says that the tracks of the Meadows automobile were apparently two and one-half to three feet to the left of the center, in the direction in which the same was traveling.
A number of witnesses, introduced by both the plaintiff and the defendant, testified that the speed of the two vehicles involved was around fifteen miles per hour, and all testified that both vehicles were struck on their left front fender. The evidence as to the position of the vehicles on the highway, when they came to rest immediately after the collision, is rather unsatisfactory, but we think this much is clear: the truck of the defendant was extended diagonally across the highway, and its front may have been across and to the left of the center of the highway in the direction it was traveling. The plaintiff's automobile was likewise in a diagonal position across the highway, and apparently on the right side thereof when looking in the direction of Mullens. The defendant says that the collision caused the front of his truck to swerve to his left some two feet. The vehicles evidently collided with some force, and the highway being partially covered with ice and snow, and, necessarily, the left side of the two vehicles being near the center of the highway, their exact position thereon after the accident may have been caused by the force of the collision and the condition of the road, and, therefore, throws little light on the decision of who was on the wrong side of the road.
One of these two vehicles had to be on the wrong side of the highway, or both so near the center thereof as to cause the collision between the parts of the vehicles which extended over the wheels thereof. The alternative mentioned is not suggested by the record before us. If, as plaintiff contends, the Meadows automobile was on his, Meadows', right side of the center line of the highway, then to produce the collision the defendant's truck must have been on the wrong side thereof; if, on the other hand, as defendant claims, his truck was on his right side of the highway, then the automobile in which plaintiff was riding must have been on the wrong side thereof. These premises being inescapable, the question arises, which vehicle was on the wrong side of the highway? If that of the defendant, it was negligence on his part; but if the Meadows automobile, then the defendant was not negligent, and the plaintiff is not entitled to recover in this case. The recovery, if any, must, in such circumstances, come from the negligent owner and operator.
This was the question the jury had to decide, and it was purely a jury question, subject, of course, to the right and power of the trial court to set aside any verdict returned as plainly wrong, or without any evidence to support it. We cannot say that there was no evidence to support the verdict; nor, had the verdict been in favor of the plaintiff, could we say that there was no evidence...
To continue reading
Request your trial