Davis v. Sargent

Decision Date10 November 1953
Docket NumberNo. 10544,10544
Citation78 S.E.2d 217,138 W.Va. 861
PartiesDAVIS, v. SARGENT et al.
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. Whether a conflict arises between positive and negative evidence of the occurrence of an event depends upon the facts and the circumstances of each case and the probative value of such negative evidence is determined from such facts and circumstances.

2. The testimony of a witness who states that the headlights on an automobile of a plaintiff were not burning at the time of a collision between the automobile of the plaintiff and an automobile driven by a defendant, and who had apparently sufficient opportunity to know that fact and gave it attention at the time, and the testimony of the plaintiff that the headlights on his automobile were burning at the time of the collision produce a conflict of evidence which it is the province of the jury to determine.

3. The questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.

4. It is the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses regarding them is in conflict; and the finding of the jury on such facts will not be disturbed by this Court.

5. Duplication of instructions is neither necessary nor desirable.

6. When a case 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 or without sufficient evidence to support it.

Wm. Bruce Hoff and Ben Parker, Parkersburg, for plaintiff in error.

McCluer, Davis & McDougle, Parkersburg, for defendants in error.

HAYMOND, President.

This is an action of trespass on the case, instituted in the Circuit Court of Wood County in January, 1951, in which the plaintiff, Walter T. Davis, seeks a recovery from the defendants J. L. Sargent and Geraldine Mae Sargent, in the amount of $10,000.00, for personal injuries and property damage sustained by the plaintiff in a collision between a Hudson coupe automobile owned and driven by the plaintiff and a Chevrolet sedan automobile owned by the defendant J. L. Sargent, upon the intersection of Latrobe Street and Sixteenth Street in the City of Parkersburg which injuries and damages, the plaintiff alleges, were caused by the negligence of the defendants.

At the time of the collision the automobile of the defendant J. L. Sargent was operated by his daughter, the defendant Geraldine Mae Sargent, who was then unmarried and a member of his family and as such was driving his automobile with his permission and consent. Sometime after the collision the defendant Geraldine Mae Sargent was married and at the time of the trial in March, 1952, her name was Geraldine Mae Sargent Pahl and she was twenty-two years of age.

Upon the trial of the issue joined upon the declaration of the plaintiff and the plea of not guilty of the defendants the jury returned a verdict in favor of the defendants. On April 18, 1952, the circuit court overruled the motion of the plaintiff to set aside the verdict and grant a new trial and rendered judgment that the plaintiff take nothing from the defendants and that the defendants recover their costs from the plaintiff. To that final judgment a writ of error was granted by this Court upon the petition of the plaintiff.

The collision which gives rise to this litigation occurred a few minutes after five o'clock in the evening of December 12, 1949. It was dark and rain was falling at the time. Sixteenth Street, on which the automobile of the plaintiff was traveling as it approached the intersection, is a through city street and extends from east to west. Latrobe Street on which the automobile driven by the defendant Geraldine Mae Sargent was traveling as it approached the intersection extends from north to south and crosses Sixteenth Street on a right angle. On Latrobe Street, immediately north of the intersection, is a stop sign which faces southbound vehicular traffic as it nears the intersection. The location of the streets, the intersection, and the traffic sign, as just described, existed at the time of the collision. The plaintiff drove his automobile in an easterly direction on Sixteenth Street and entered the intersection before the automobile driven by the defendant Geraldine Mae Sargent, traveling south on Latrobe Street, reached the intersection. As the automobile of the plaintiff came upon the intersection before the automobile driven by the defendant Geraldine Mae Sargent and as that automobile approached the plaintiff on his left side the plaintiff had the right of way over the defendant Geraldine Mae Sargent in the operation of the automobiles upon and across the intersection. See Burdette v. Henson, 96 W.Va. 31, 122 S.E. 356, 37 A.L.R. 489. Though the exact speed of neither automobile is shown, it appears that each of them was moving at a low rate of speed when they collided. As the automobile of the plaintiff was in the act of crossing the intersection in the path of the automobile driven by the defendant Geraldine Mae Sargent the front end of that automobile struck the left rear fender of the automobile of the plaintiff. At the time of the collision the plaintiff was the only occupant of his automobile, but two young women were occupying the rear seat of the automobile driven by the defendant Geraldine Mae Sargent.

After the collision the automobile of the plaintiff continued eastwardly across the intersection and came to a stop on Sixteenth Street on an angle at a point a few feet east of the intersection with the rear near the southern curb and the front extending toward the center of the street. The other automobile went to the left side of Latrobe Street and continued south on that street for several feet. When it ceased to move about four feet of the rear portion of the automobile was on the intersection and its left side was near the east curb of Latrobe Street. The driver of each automobile got out of the automobile immediately after the collision and the plaintiff and the defendant Geraldine Mae Sargent engaged in a conversation in which, according to her testimony, he said: 'I don't think I am hurt. I might be shook up a little and I am somewhat shocked, but that's all. I am not hurt otherwise', but in which, according to his testimony, she said that he was hurt and should go to a hospital and that he replied, 'Well, I don't think I am hurt that bad, but I will wait till I get home and I will call the doctor.'

The plaintiff used a nearby telephone to report the collision to the city police and two policemen came to the scene and investigated the conditions before either automobile was moved. Each officer questioned each driver separately. These officers prepared a report of the accident and both of them testified at the trial as witnesses in behalf of the plaintiff. Because of the damaged condition of his automobile the plaintiff was unable to drive it from the scene of the wreck. He requested one of the policemen to call a 'wrecker' from the 'Auto Hospital' and he remained at the scene of the wreck for approximately an hour until the 'wrecker' towed his automobile and took him to the 'Auto Hospital'. There he telephoned his wife. She responded to his call, came there by automobile, and took him to their home where they arrived a few minutes before seven o'clock that evening. His wife by telephone reported his condition to their family physician who because of illness did not then visit the plaintiff but she cared for him as directed by the physician. The next day the plaintiff went to the office of the physician who there examined him and since then he has treated him for the injuries and the other ailments including impairment of vision and a condition of dizziness which the plaintiff asserts resulted from the collision.

The immediately discoverable personal injuries sustained by the plaintiff in the collision consisted of contusion of his left chest wall, resulting in pleurisy, laceration of his left knee, contusions and abrasions on other parts of his body, and shock complicated by a generalized hive condition, from all of which the plaintiff had recovered prior to the trial except the pleurisy which in the opinion of his physician is permanent. As a result of his injuries the plaintiff was unable to work for a period of six weeks which included a vacation of two weeks to which he was entitled but during his absence from work he was paid his regular wages or salary by his employer without deduction. His doctor bills and medical expenses amounted to approximately $369.36 and the cost of repairing the damage to his automobile which he has paid was $123.42.

The plaintiff testified that when he left the scene of the wreck the defendant Geraldine Mae Sargent was still there, and the evidence does not disclose when or how she left or when or how the automobile which she had driven was removed. None of the occupants of the automobile driven by the defendant Geraldine Mae Sargent, however, sustained any injury to her person.

The only eyewitnesses to the collision were the plaintiff, the defendant Geraldine Mae Sargent, and the two young women who were occupants of the rear seat of the automobile driven by her at the time. The material facts as to the place of the collision and the manner in which it happened are not disputed. Upon the questions whether the defendant Geraldine Mae Sargent stopped at or before entering the intersection and whether the headlights on the automobile of the plaintiff were burning before and at the time of the collision, the testimony of the plaintiff and of the defendant Geraldine Mae...

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    ...regarding them is in conflict; and the finding of the jury on such facts will not be disturbed by this Court." Syl. pt. 4, Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953); see also Syl. pt. 2, Blamble v. Harsh, 163 W.Va. 733, 260 S.E.2d 273 (1979); Syl. pt. 2, Bourne v. Mooney, 163 W.......
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