Dye v. Rathbone.

• Decision Date: 19 October 1926
• Docket Number: (No. 5586)
• Parties: Earnie Dye v. Will Rathbone et al.
• Court: West Virginia Supreme Court

102 W.Va. 386

Earnie Dye

v.Will Rathbone et al.

(No. 5586)

Supreme Court of Appeals of West Virginia.

Submitted October 12, 1926.

Decided October 19, 1926.

1. Trial Judge Should Carefully Abstain from Indicating by Word, Gesture, or Otherwise Personal Views on Weight of Evidence, Credibility or Incredibility of Witnesses, or Extent of Damages Sued for.

The judge of the court when engaged in the trial of a case before a jury should studiously abstain from indicating by word, gesture or otherwise his personal views upon the weight of evidence, or the credibility or incredibility of the witnesses, or the extent of the damages sued for, thereby to invade the province of the jurors, the proper triers of the facts, (p. 392.)

(Trial, 38 Cyc. pp. 1317, 1320, 1646, 1651.)

2. Automobiles Negligence Instruction That Plaintiff, Injured in Automobile Collision, Has Burden to Show Defendant's Negligence and His Own Want of Contributory Negligence is Error; Burden of Establishing Contributory Negligence is on Defendant.

In an action for personal injuries and damages to property sustained in an automobile collision, it is error for the trial court by an instruction to tell the jury that the burden is upon the plaintiff to show negligence on the part of the defendant and want of contributory negligence on his part. Contributory negligence is defensive matter, and while it may be shown by plaintiff's own evidence as well as the evidence adduced by the defendant, nevertheless the burden is upon the defendant who is shown to be negligent, to establish contributory negligence on the part of the plaintiff resulting in the injury complained of. (p. 393.)

(Negligence, 29 Cyc. p. 644.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of Syllabi.)

Error to Circuit Court, Roane County. Action by Earnie Dye against Will Rathbone and another. Judgment for defendants, and plaintiff brings error.

Judgment reversed; verdict set aside; new trial awarded.

Wm. S. Ryan and T'hos. P. By an, for plaintiff in error. drover F. Hedges, for defendants in error.

Miller, Judge:

Plaintiff sued defendants for damages to his Ford car, and for personal injuries sustained in a collision between his car and that of the defendant Rathbone, also a Ford car, which was being driven by the defendant Ora Hardman, due to the alleged negligence of the defendants in the management and control of their car. The result of the trial was a verdict for the defendants, and a judgment of nil capiat against plaintiff.

That there was a collision between the two cars, and that both were badly wrecked, and that plaintiff sustained severe personal injuries, were facts not only admitted but fully proven on the trial. The question at issue was who was at fault, resulting in the damages sustained. The collision occurred on a road in Roane County between the village of Billings and the village of Reedy, on a grade some three hundred feet in length, at dusk, as the plaintiff driving his car was descending and the defendants were ascending the grade. There was a slight curve at the top of the grade, and a sharper one at the foot of the hill. Plaintiff, in charge of his car, rounded the curve at the top of the grade just about the time that the defendants came around the curve at the foot of the hill, and each saw the other about the same instant, by the lights of their respective machines. Just what the grade was does not appear, but the evidence indicates that it was a steep one. The plaintiff descending held the side next to a high bank, and the defendants in ascending held the side next to the creek and a deep embankment running down to the creek. The width of the road, the traveled portion, at the point of the accident, was about twenty-one feet, according to the evidence of the plaintiff, so that there should have been no danger in traveling the road with auto cars if properly controlled by the drivers. Plaintiff's claim is that in rounding the curve at the top of the grade, and in descending, he was not traveling to exceed fifteen or twenty miles an hour, and was maintaining his proper place on the right side of the road, but that defendants, just before and at the time of the collision, were crowding and forcing him. farther and farther over by invading his side of the road, and finally hitting him and throwing him upon a rock embedded in the ditch or gutter at the side of the road, causing his car to turn over, with the results as detailed. His testimony, however, does not very well bear out this theory, for when asked whether his car hit the rock, he answered: "Well, I couldn't say as to that. You see, the car hit just before I got to the rock. I was only about a foot or two from the rock when the cars hit, and when the cars hit it knocked me unconscious."

Nor was he certain whether his wheels were in the side ditch. There was no appreciable evidence that defendants were moving up the grade at a high rate of speed, or were negligent in that regard, but only that they were crowding plaintiff out of his side of the highway. On the other hand, a number of witnesses at a church on the top of the hill, on plaintiff's side of the road, all agree that plaintiff approached the top of the hill and descended at a very high rate of speed, about thirty-five miles per hour; one at least said, "at a dangerous rate of speed." The evidence on this important fact of the speed on the down grade, greatly preponderates against the plaintiff. This is pertinent, especially in view of the fact that several witnesses swear that before the accident, when his attention was called to the fact that the brakes on his car were defective or wanting, plaintiff replied that he did not need brakes on a Ford car. And the physical facts appearing immediately after the collision tend rather to support the defendants' theory than that of plaintiff. And defendants and their witnesses to the accident swear that their car was at all times under proper control, and that they held tenaciously to their side of the road, going so close to the embankment as to excite the fear of one of the passengers. Nevertheless, after the impact, defendants' car stood diagonally across the right side of the road ascending the hill; the left front wheel was torn off and resting on the middle of the road; the right hind wheel was within from three to five feet from the outer edge of the road; while plaintiff's car had run down and turned over once or twice, and finally landed down the hill from sixty-five to eighty feet below where defendants' car then stood, and was lying over in the left-hand side of the read going down. Necessarily, the impact of plaintiff's car, being of the same make and weight, was to retard and push back defendants' car in the direction of the force, and to throw it around diagonally across the road just as it was found, and to move on down the hill as far as the superior force due to the grade of the hill and the rate of speed would carry it, and to land at the point where it was found after the impact.

Our first thought was that probably these physical facts would overcome the claims of the one side or the other and render it unnecessary to reverse the judgment for any error committed on the trial. But further consideration of the facts will hardly permit us to dispose of the case in that way. "We have recently approved and applied the rule laid down in 1 Moore on Facts, Sec. 150, that courts should not indulge in...