Dunning v. Barlow & Wisler, Inc.

• Citation: 148 W.Va. 206,133 S.E.2d 784
• Decision Date: 17 December 1963
• Docket Number: No. 12233,12233
• Court: Supreme Court of West Virginia
• Parties: E. C. DUNNING et al. v. BARLOW & WISLER, INC.

Page 784

133 S.E.2d 784

148 W.Va. 206

E. C. DUNNING et al. v. BARLOW & WISLER, INC.

No. 12233.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1963.

Decided Dec. 17, 1963.

Syllabus by the Court

1. 'The judgment in a law action heard by a court in lieu of a jury, will be given the same force in this Court as though based on the verdict of a jury, and will not be disturbed unless plainly wrong, or without any evidence to support it.' Syl., Green v. Henderson, 136 W.Va. 329 .

2. 'When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination.' Syl. Pt. 3, Spurlin v. Nardo, 145 W.Va. 408 .

3. 'The violation of a statute or an ordinance is prima facie actionable negligence when it is the natural and proximate cause of an injury.' Syl. Pt. 13, Payne v. Kinder, W.Va. .

4. 'The proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.' Syl. Pt. 5, Hartley v. Crede, 140 W.Va. 133 .

5. 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, assumed as true.' Syl. Pt. 1, Butcher v. Stull, 140 W.Va. 31 .

6. In cases within its appellate jurisdiction this Court will not consider or decide nonjurisdictional questions which have not been determined by the trial court.

Ben B. White, Jr., Princeton, Leo Catsonis, Charleston, for appellant.

Arthur F. Kingdon, Bluefield, for appellees.

BROWNING, Judge.

Plaintiffs, E. C. and Lorain W. Dunning, instituted this action in the Circuit Court of Mercer County to recover the amount of property damage sustained in a collision between the automobile owned by them and the truck of the defendant. Defendant answered denying any negligence on its part but asserting, that if it were guilty of any negligence, then plaintiffs were guilty of contributory negligence barring any recovery. Unless otherwise specifically stated, the operators of the respective vehicles involved will be hereinafter designated as plaintiffs or defendant.

The case was tried to the Court, without a jury, and, on July 5, 1962, the Court entered judgment for the plaintiffs in the amount of $414.55, the order reciting the Court's findings of fact that the defendant's driver was guilty of negligence in four separate particulars and that the 'Plaintiffs were not guilty of contributory negligence as a matter of law', and its 'Conclusion of Law, that the negligence of the Defendant was the sole proximate cause of the accident, to which order this Court granted an appeal and supersedeas on April 1, 1963.

Errors assigned in this Court relate to the trial court's finding that plaintiffs were not contributorily negligent as a matter of law and its conclusion that the negligence of the defendant was the sole proximate cause of the accident.

The accident in question occurred January 29, 1962, on U. S. Route 52 north of Bluefield, West Virginia, at a point where the highway consists of two southbound traffic lanes and one northbound lane. Both vehicles involved were southbound. Plaintiffs' automobile was operated by their son, who testified: '* * * As I came into the lane, there was a truck ahead of me riding in the center lane, I came behind it and blew my horn; I blew it more than once, a couple of times. The driver failed to move to the right, I waited a few seconds, and pulled into the right lane, and waited a few more seconds, and he never signaled, and I started around him and blew my horn to let him know I was there; and when I blew my horn, he ran into my side and ran me into an embankment.' On cross-examination, the witness testified that he traveled the road every day and that there is a sign posted beside the road stating, 'Keep right except to pass.'

The driver of defendant's truck testified that: as he entered upon the three lane section of road '* * * I passed a car that was moving very slowly in the righthand lane, and ahead of me quite a little ways was a pick-up truck that wasn't going very fast that I intended to pass later on. And when I got up to about the entrance to Mr. Cook's dog kennel, I heard a horn suddenly, and I thought somebody else wanted the passing lane, and so I immediately pulled over to the right, I pulled into Mr. Dunning's car.' He further testified that: the pick-up truck referred to was one hundred yards or more in front of him; there was a rear-view mirror mounted outside the truck on the driver's side and a rear window in the cab of the truck; there was no rear-view mirror in the cab; 'I did not look back. I was looking ahead.' and upon hearing the horn pulled over into the right lane; some paint had been removed in the area of the rear fender of the truck; and, he had gone perhaps 'a couple of feet * * *' across the line dividing the traffic lanes when he heard brakes screaming. A passenger in the truck testified that he heard a horn and 'Mr. Peale [the driver] was going to pull over. I heard a bump and looked out and this car was beside us.' He also testified that the front of plaintiffs' automobile was 'Right about where I was sitting.'

Code, 17C-7-3, as amended, provides:

'The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to these limitations, exceptions, and special rules hereinafter stated.

'(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall give an audible signal and pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.

'(b) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.'

Code, 17C-7-9, as amended, provides:

'Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:

'(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

'(b) Upon a roadway which is divided into three lanes a vehicle shall not be driven in the center lane except when overtaking and passing another vehicle where the roadway is clearly visible and such center lane is clear of traffic within a safe distance, or in preparation for a left turn or where such center lane is at the time allocated exclusively to traffic moving in the direction the vehicle is proceeding and is signposted to give notice of such allocation.

'(c) Official signs may be erected directing slow-moving traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction regardless of the center of the roadway and drivers of vehicles shall obey the directions of every such sign.'

'The judgment in a law action heard by a court, in lieu of a jury, will be given the same force in this Court as though based on the verdict of a jury, and will not be disturbed unless plainly wrong, or without any evidence to support it.' Syl., Green v. Henderson, 136 W.Va. 329, 67 S.E.2d 554. 'The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.' Syl. Pt. 6, Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33; General Electric Credit Corp. v. Fields, W.Va., 133 S.E.2d 780; Cotiga Development Company v. United Fuel Gas Co., W.Va., 128 S.E.2d 626; Edwards v. Hylbert, 146 W.Va. 1, 118 S.E.2d 347; Kinsey v. Carr, 60 W.Va. 449, 55 S.E. 1004. This principle, long established by the case law of this state, is reiterated by Rule 52(a), Rules of Civil Procedure, which, after requiring a trial court in actions tried upon the facts without a jury or advisory jury to find the facts specially and to separately state the conclusions of law thereon, provides that such '* * * Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. * * *' In view of this rule this Court could not disturb the findings of the trial court as to the negligence of the defendant in violating the provisions of Code, 17C-7-9, as amended, or in failing to exercise due care under the circumstances, inasmuch as these are pure findings of fact which are amply supported by the evidence. However, it is fundamental that an appellate court is not bound by, nor required to give any special weight to, the conclusions of law applied by the trial court to the facts so found, it being the duty of the appellate court to determine whether the correct legal principles have been applied.

The question of contributory negligence is a mixed question of law and fact. Ewing v. Lanark Fuel Co., 65 W.Va. 726, 65 S.E. 200, 29 L.R.A., N.S., 487. 'When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination.' Syl. Pt. 3, Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913; Evans v. Farmer, W.Va., 133 S.E.2d 710; Spaur v. Hayes, W.Va., 126 S.E.2d 187; Leftwich v. Wesco Corp., W.Va., 119 S.E.2d 401; Overton v. Fields, 145...