Davis v. Pugh

• Decision Date: 20 December 1949
• Docket Number: No. 10149,10149
• Citation: 57 S.E.2d 9,133 W.Va. 569
• Court: West Virginia Supreme Court
• Parties: DAVIS, v. PUGH et al.

Page 9

57 S.E.2d 9

133 W.Va. 569

DAVIS, v. PUGH et al.

No. 10149.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1949.

Decided Dec. 20, 1949.

Syllabus by the Court.

1. 'In an action to recover damages for personal injuries caused by the alleged negligence of the defendant, it is the peculiar province of the jury to determine the questions of negligence and contributory negligence, when the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.' Point 1, Syllabus, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410.

2. 'When an action for the recovery of damages for personal injuries, involving conflicting testimony and circumstances upon the questions of negligence and contributory negligence, has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence, of without any evidence to support it.' Point 2, Syllabus, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410.

3. It is not an abuse of discretion for the trial court to refuse to submit special interrogatories to a jury in a case where the issues are few and uncomplicated and it is evident that special verdicts would not aid the jury in reaching a correct conclusion.

4. 'In an action for personal injuries, the damages are unliquidated and indeterminate in character, and the assessment of such damages is the peculiar and exclusive province of the jury.' Point 3, Syllabus, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410.

5. 'The verdict of a jury in an action for personal injuries will not be set aside as excessive unless it is unsupported by the evidence, or is so large as to indicate that the jury was influenced by passion, partiality, prejudice of corruption, or entertained a mistaken view of the case.' Point 4, Syllabus, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410.

Payne, Minor & Ray, Charleston, R. E. Stealey, Charleston, for plaintiff in error.

Watts, Poffenbarger & Bowles, Charleston, Martin C. Bowles, Charleston, for defendant in error.

HAYMOND, President.

This action of trespass on the case was instituted in the Court of Common Pleas of Kanawha County by the plaintiff, Paul Jackson Davis, an infant, suing by his next friend, to recover damages from the defendants, Flora B. Pugh, H. R. Pugh, Jr., Jean Pugh Withrill, Joan H. Pugh and W. A. Pugh, partners trading as Pugh Furniture Company, and J. Stewart Fravel, herein referred to as the defendant, for personal injuries sustained by the plaintiff as the result of the negligence of the defendants when an automobile owned and driven by the defendant Fravel struck and seriously injured the plaintiff on a public highway in the City of South Charleston, Kanawha County, on September 21, 1946. At the conclusion of the evidence introduced in behalf of the plaintiff, on his motion, the defendants, other than Fravel, were dismissed from the case. The trial proceeded against Fravel as the sole defendant and resulted in a verdict of the jury against him in favor of the plaintiff for $5,000.00. The trial court overruled the motion of the defendant to set aside the verdict and grant him a new trial and, on January 28, 1948, entered judgment upon the verdict. Upon a writ of error to the Circuit Court of Kanawha County the judgment of the court of common pleas was affirmed on January 18, 1949, and to the latter judgment this writ of error was awarded by this Court on March 7, 1949.

The accident which gave rise to this controversy occurred on a public highway known as McCorkle Avenue in the City of South Charleston, on the evening of September 21, 1946. The day was warm and bright and the sun had not set at the time the accident happened.

McCorkle Avenue is a part of U. S. Route 60 and for more than two hundred and forty six feet east and for approximately one hundred and thirty feet west of the place of the accident follows a straight course on a practically level surface and is divided into two sections separated by a traffic island which parallels each section and is interrupted by cross lanes at various points. The width of the south section which is used for one way traffic to the east is thirty feet between the curbs and that section contains three lanes of travel. The distance from the place of the accident to the nearest cross lane through the traffic island to the east is one hundred and thirty eight feet and the nearest intersecting street is one hundred and eight feet farther to the east. A sidewalk four feet in width runs along the south side of the avenue. On a lot abutting the sidewalk are two stumps about nineteen feet apart. One of these stumps is nearer the sidewalk than the other and is about four feet south of the walk. The place of the accident in one of the traffic lanes is almost directly opposite this stump. On the south side of the highway at a distance of one hundred and eighty six feet west of the place of the accident is a welding shop, and near this point the highway to the west curves to the right. Each one of two travel lanes in the southern section is eleven feet in width and the other lane which adjoins the south curb is eight feet in width. The northern section of the highway is used for one way traffic to the west. The location of the highway and the stated distances existed at the time of the accident and were unchanged at the time of the trial.

The plaintiff, a schoolboy about twelve years of age when the accident occurred, lived on the north side of the highway, had crossed it three or four times daily on his way to school for some time before he was injured, and was familiar with that part of the avenue and the existing traffic conditions. Shortly before he was hurt he came from his home to a point on the sidewalk a short distance west of the stumps when one of two boys in the lot threw a football toward the plaintiff. The football went beyond the reach of the plaintiff and into the lane of the south section of the highway which adjoins the traffic island. This lane is referred to in the evidence as number three lane or the third lane, and the center lane which adjoins it is referred to an number two lane or the second lane. The plaintiff looked west along the highway and saw an automobile in the second lane approaching from the west near the welding shop. The plaintiff crossed that lane in front of the automobile which passed to his right. He continued across the south section until he entered the third lane which adjoins the traffic island and, at that point, while attempting to recover the football, he was struck by the automobile driven by the defendant which was traveling east in that lane. The plaintiff was knocked or thrown over the front end of the automobile and fell on the highway behind the automobile which, according to the testimony of three witnesses for the plaintiff and one witness for the defendant, continued for a distance of about one hundred and thirty eight feet east of the place of the accident before it came to a stop. The plaintiff was severely injured. His pelvis and both bones of his left leg were fractured and he sustained numerous cuts and bruises on other parts of his body. He was hospitalized for three weeks and confined to his bed at home for an additional period of five months.

There is a sharp conflict in the evidence as to the manner in which the accident occurred and the speed at which the automobile was traveling at the time it struck the plaintiff. The plaintiff testified that before leaving the sidewalk to go upon the highway he looked west, and saw only one automobile approaching from that direction at a speed of thirty-five to forty miles per per hour and that it was near the welding shop and in the second lane; that he did not run upon the highway but that his gait was 'faster than a walk'; that he went to the football which was in the center of the third lane; that he picked up the football and when he did so the automobile struck him; that he did not see the automobile until just before it hit him; that it was then traveling at a speed of about forty miles per hours; and that he did not hear any sound from the brakes or the horn of the automobile. His two companions, boys fourteen and fifteen years of age, who were playing with the football when he came to the sidewalk and who saw the accident, gave substantially the same testimony as that given by the plaintiff. Another witness for the plaintiff, who was traveling west in an automobile on the north section of the highway, saw the accident as he approached it from the east. He testified that he first saw the Fravel automobile when it was traveling east in the second lane near the welding shop; that there were two other automobiles traveling in front of it in that lane; that it was in the third lane when it hit the plaintiff; that the right front fender and the bumper struck him; that the Fravel automobile started to pass the automobiles in front of it at a point about 'two-thirds of the distance' from the place of the accident to the welding shop; that he saw the football as it came into the street; that it struck near the center of the 'island', bounced into the second lane and bounced again as the plaintiff reached for it when the Fravel automobile struck him; that the football had bounced in the center of the street when the defendant Fravel started to pass the automobile in front of him; that the plaintiff 'ran out into the street'; that he did not know whether the plaintiff 'got his hands on the football or not' before he was struck; that after the plaintiff was struck he was lying in the highway about fifteen feet east of the point where he was hit; and that when the Fravel automobile struck the plaintiff it was 'a car length or so' in advance of the traffic in the center lane.

The defendant Fravel testified in his own behalf. He stated that he had been driving his automobile in the...