Edwards v. Lynch

• Decision Date: 14 July 1970
• Docket Number: No. 12894,12894
• Citation: 175 S.E.2d 632,154 W.Va. 388
• Court: West Virginia Supreme Court
• Parties: Virginia R. EDWARDS v. Viola May LYNCH.

Page 632

175 S.E.2d 632

154 W.Va. 388

Virginia R. EDWARDS v. Viola May LYNCH.

No. 12894.

Supreme Court of Appeals of West Virginia.

Submitted May 26, 1970.

Decided July 14, 1970.

Syllabus by the Court

1. 'In an action prosecuted in this state for recovery of damages for personal injury or for wrongful death caused in a foreign jurisdiction, the substantive law of the foreign jurisdiction controls the right of recovery but the adjective law of this state is applied to and controls the remedy.' Point 1 Syllabus, Thornsbury v. Thornsbury, 147 W.Va. 771 (131 S.E.2d 713).

2. Where a plaintiff in a civil action sues for recovery of damages for personal injuries resulting from a collision of an automobile operated by the defendant with an automobile operated by a person not a party to the civil action, the defendant cannot defeat the plaintiff's recovery by showing that the other motorist was guilty of negligence which concurred with the negligence of the defendant in proximately causing the plaintiff's injuries or by showing that the other motorist, by the exercise of reasonable care, had the last clear chance to avoid the collision which caused the plaintiff's personal injuries.

3. 'Where the evidence given on behalf of the defendant is clearly insufficient to support a verdict for him so that such verdict, if returned by a jury, must be set aside, and the evidence of the plaintiff is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff.' Point 5 Syllabus, Sommerville v. Pennsylvania Railroad Co., 151 W.Va. 709 (155 S.E.2d 865).

Oakley J. Hopkins, Morgantown, for appellant.

Baker & Armistead, Charles S. Armistead, Morgantown, for appellee.

CALHOUN, Judge.

This case, on appeal from a final judgment of the Circuit Court of Monongalia County entered on March 11, 1969, on a jury verdict for $75,000, involves a civil action instituted in that court by Virginia R. Edwards, as plaintiff, against Viola May Lynch, as defendant, for recovery of damages for personal injuries sustained by the plaintiff while she was being transported as a passenger in an automobile which was being driven and operated by the defendant when that automobile collided with another automobile in the State of Maryland on May 21, 1967.

At the conclusion of all the evidence, the trial court directed a verdict in favor of the plaintiff on the question of liability and authorized the jury to determine the amount of the plaintiff's damages. The jury thereafter returned the verdict which formed the basis of the judgment from which the defendant was granted the appeal to this Court.

After the appeal was awarded, the plaintiff was granted leave to move to affirm the judgment of the trial court pursuant to the provisions of Code, 1931, 58--5--25 and Rule IX of the Rules of this Court. In these circumstances, the case was submitted for decision upon the original record, upon printed briefs and upon oral argument of counsel.

The primary question presented for decision on this appeal is whether the trial court erred in directing a verdict in favor of the plaintiff on the issue of liability. The facts pertinent to a decision of that question are without substantial dispute.

As a consequence of the severe personal injuries sustained by the plaintiff, she incurred medical bills and a projected loss of earnings which were quite substantial in their aggregate amount. In these circumstances, it was stipulated in the trial court that, on this appeal, the defendant would not present or argue any cause for reversal based on the extent of the plaintiff's injuries or the amount of the verdict and judgment.

Immediately prior to the occurrence of the collision of the two automobiles, Viola May Lynch, the defendant, was proceeding in a northerly direction near LaVale, Maryland, on a public highway known as Route 53. A lady named Isabel Hough was seated on the passenger side of the front seat and the plaintiff, a sister of the defendant, was a passenger on the rear seat of the defendant's automobile. Immediately prior to the occurrence of the accident, the other automobile which was involved in the collision was being operated by Mrs. Elsie Morton on a public highway known as Route 49.

The collision occurred within the area of the intersection of the two highways. On Route 53, on which Viola May Lynch, the defendant, was traveling, there is a highway 'stop sign' on each side of that highway near the point of the intersection of the two highways. It was necessary for the defendant to pass these two highway stop signs before entering the point of intersection of the two highways. It is undenied that Route 49, on which Mrs. Morton was traveling, is a through highway, known in Maryland law as a 'boulevard', and that it was the favored highway in relation to Route 53, on which the defendant was traveling.

It is undisputed that the substantive law of the State of Maryland is applicable to and controls the plaintiff's right to recover in the civil action. Thornsbury v. Thornsbury, 147 W.Va. 771, pt. 1 syl., 131 S.E.2d 713. It was stipulated by counsel that the law applicable to the rights of the respective drivers of the motor vehicles at the highway intersection involved in this case is stated in Sections 233 and 242 of Article 66 1/2 of the Public General Laws of Maryland and that the trial court was authorized to take judicial notice of those statutes. We are, of course, authorized to take judicial notice of the Maryland statutes in question, irrespective of the presence or absence of a stipulation auhorizing us to do so. Code, 1931, 57--1--4. A portion of Section 233 of the Maryland statute in question is as follows:

'(a) In general.--The driver of a vehicle shall come to a full stop as required by this article at the entrance to a through highway and shall yield the right-of-way to other vehicles approaching on said through highway.

'(b) Stopping in obedience to stop sign.--The driver of a vehicle shall likewise come to a full stop in obedience to a stop sign and yield the right-of-way to a vehicle approaching on the intersecting highway as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway.'

Section 242 of the Maryland statute previously referred to is as follows:

'(a) Designation of through highways and erection of signs.--The State Roads Commission with reference to State and county highways, and local authorities with reference to other highways under their jurisdiction may designate through highways and erect stop signs at specified entrances thereto or may designate any intersection as a stop intersection and erect like signs at one or more entrances to such intersection.

'(b) Type and location of signs.--Every said sign shall bear the word 'stop' in letters not less than six inches in height. When installed upon important intersecting highways, these signs shall be self-illuminated at night or, if not, shall be of the reflector type. Every stop sign shall be located as near as practical at the property line of the highway at the entrance to which the full stop must be made, or at the nearest line of the crosswalk thereat, or, if none, at the nearest line of the roadway.

'(c) Duty of driver.--Every driver of a vehicle shall come to a full stop at such sign or at a clearly marked stop line before entering an intersection and yield the right-of-way to vehicles approaching on the intersecting highway except when directed to proceed by a peace officer or traffic control signal.'

The evidence clearly discloses that the collision occurred within the area of the intersection of the two highways. This fact was not disputed by the defendant or by any other witness who testified at the trial. Paul J. Fiorita, a member of the Maryland State Police, testified that he investigated the circumstances of the accident a short while after the collision occurred. He made a diagram which illustrated the intersection of the two highways and the position of the two automobiles as they came to rest following the collision. He also made eight photographs which clearly depict the two highways at and near the point of intersection and the position of two automobiles as they came to rest following the collision. The photographs and the diagram were made a part of the evidence.

The photographs, supplemented by the diagram and by the testimony of the investigating officer, demonstrate clearly that, when the two automobiles came to rest following the collision, they were in contact with each other, within the area of the intersection and in the right lane of the through highway upon which Mrs. Morton had a lawful right to proceed in her automobile. The photographs disclose the location of the two stop signs on Route 53 which the defendant necessarily passed in order to enter the intersection. The investigating officer testified that there was nothing whatsoever to obstruct the defendant's view of the approaching Morton automobile. This fact was admitted by the defendant when she testified as a witness.

The defendant testified that she was an experienced driver; that previously she had 'driven past' the intersection in question 'quite a few times'; that before entering the intersection, she stopped her automobile and looked 'both ways' for approaching traffic; and that thereafter she 'started up.' In explaining the circumstances under which she proceeded into the intersection, the defendant testified as follows:

...