Davis v. Cross, 12705

• Court: Supreme Court of West Virginia
• Writing for the Court: CAPLAN
• Citation: 164 S.E.2d 899,152 W.Va. 540
• Parties: Nathan Leon DAVIS v. Darrell CROSS et al.
• Docket Number: No. 12705,12705
• Decision Date: 20 December 1968

Page 899

164 S.E.2d 899 152 W.Va. 540 Nathan Leon DAVIS
v.
Darrell CROSS et al. No. 12705. Supreme Court of Appeals of West Virginia. Submitted Oct. 1, 1968.
Decided Dec. 20, 1968.

Page 900

Syllabus by the Court

1. To recover in an action based on negligence, the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains and if the plaintiff fails to establish such primary negligence the court should direct a verdict for the defendant.

2. In the event that the defendant makes a motion for a directed verdict at the conclusion of all the evidence on the ground that the plaintiff has failed to establish a case of prima facie negligence and such motion is denied, the court, upon the return of a verdict for the plaintiff, may, in accordance with Rule 50(b), R.C.P., and upon timely motion of the defendant, set aside the verdict and the judgment entered thereon and enter judgment for the defendant.

[152 W.Va. 541] No appearance for appellant.

Hyer, Gibson & Talbott, Elkins, for appellees.

CAPLAN, Judge:

This is an appeal from the Circuit Court of Randolph County involving an action for damages resulting from a collision between a Honda motorcycle operated by the plaintiff and a municipal fire truck operated by the defendant. Upon the trial of this case motions for a directed verdict were made by the defendant after the plaintiff's evidence and at the conclusion of all the evidence. Both of these motions were overruled and the case went to the jury which returned a verdict for the plaintiff in the sum of $25,315.62. Upon the timely motion of the defendant for a judgment, pursuant to Rule 50(b), Rules of Civil Procedure, the circuit court set aside the verdict and judgment and entered judgment for the defendant. It is from this final order that the plaintiff prosecutes this appeal. In the proceeding before this Court no appearance was made by the appellant after his appeal was granted, either by brief or by argument.

The collision which gave rise to this action occurred on May 17, 1964 at approximately 8 P.M. Nathan Leon Davis, the plaintiff, was operating a Honda motorcycle in a westerly direction on First Street in the City of Elkins. As he approached the intersection of First Street and Kerens Avenue, which extends from north to south, a fire truck, owned by the City of Elkins and being driven by the defendant Cross proceeded into the intersecton from Kerens Avenue in a southerly direction and began to make a left turn on to First Street. At this time the fire truck was responding to a fire alarm and was manned by three men in addition to the defendant driver. The collision occurred in this intersection when the Honda struck the fire truck just behind the driver's door. As a result of this collision the plaintiff was severely injured.

[152 W.Va. 542] Upon the institution of this suit the plaintiff complained that the defendant drove the fire truck in a negligent manner thereby causing the injuries for which damages are sought. This action was instituted against the defendant driver, the City of Elkins and the State Farm Automobile Insurance Company, the latter two being dismissed prior to the trial.

The plaintiff contends that the defendant was negligent in the operation of the fire truck in that he did not observe the stop sign on Kerens Avenue prior to making

Page 901

his turn on to First Street and that he was further negligent in the manner in which he made the turn. The defendant takes the position that the final action of the circuit court should be affirmed for the reason that there was insufficient evidence of negligence on the part of the defendant to support a verdict in favor of the plaintiff. Specifically, the defendant asserts that the degree of care required of a driver of an authorized emergency vehicle, while it is being operated in response to an emergency call, is the duty to exercise reasonable care and diligence under the circumstances of such emergency. The defendant cites Code, 1931, 17C--2--5, as amended, which provides that the driver of an authorized emergency vehicle when responding to an emergency call may disregard traffic regulations so long as he does so without reckless disregard for the safety of others and in the circumstances noted in such code provision. Also cited by the defendant is Code, 1931, 17C--9--5, as amended, which, in effect, provides that other vehicles shall yield the right of way and move from the path of any emergency vehicle upon the sounding by the latter of an audible signal and the exhibiting of a red light. The defendant furthermore asserts that even if he were guilty of negligence the plaintiff, by his negligence, contributed to his injuries and cannot recover.

The principal question involved on this appeal is whether, under the circumstances revealed by the record, there was sufficient evidence of negligence on the part of the defendant to warrant submission of the case to the jury. In making this determination, we must examine the acts [152 W.Va. 543] of the defendant at the time of the collision and consider the nature of the venture in which he was engaged at that time.

This is not the usual case of a collision between two ordinary vehicles. The defendant was the driver of an authorized emergency vehicle responding to an emergency call. Therefore, in determining whether the acts complained of constituted primary negligence, a different standard must be applied than that applied to the conventional driver. Pertinent to the decision of this case is the language of Code, 1931, 17C--2--5, as amended, which reads as follows:

'(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

(1) Park or stand, irrespective of the provisions of this chapter;

(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3) Exceed the...