Elrick v. Brown
| Decision Date | 15 November 1996 |
| Docket Number | No. 23338,23338 |
| Citation | 198 W.Va. 97,479 S.E.2d 607 |
| Court | West Virginia Supreme Court |
| Parties | Raymond P. ELRICK and Sharon A. Elrick, Plaintiffs Below, Appellants, v. Larry W. BROWN and Siron Trucking, Inc., Defendants Below, Appellees. |
Syllabus by the Court
Syllabus point 3, Blackburn v. Smith, 164 W.Va. 354, 264 S.E.2d 158 (1980).
Jeffrey T. Jones, Kessler & Jones, Charleston, for Appellants.
Geraldine S. Roberts, Tracey A. Rohrbaugh, McNeer, Highland, McMunn & Varner, L.C., Clarksburg, for Appellees.
This is an appeal by Raymond P. Elrick and Sharon A. Elrick, his wife, from an order of the Circuit Court of Randolph County denying them a new trial in a personal injury action. 1 In the action, a jury had found both the appellants and the appellee 50% negligent for a vehicle accident which occurred on November 2, 1993. As a consequence, under West Virginia's comparative negligence rule, the appellants received no recovery. On appeal, the appellants claim that the trial court erred in instructing the jury and that jury's verdict was against the weight of the evidence. They also claim that the fact that the appellee's counterclaim was dismissed should have acted as an adjudication upon the merits of the appellee's claim and, in effect, dictates that they are entitled to a recovery. After reviewing the issues raised, this Court believes that the trial court did err in instructing the jury, and we reverse and remand on that point. Inasmuch as a new trial is required, we conclude that it is unnecessary to address the question of whether the evidence supports the verdict rendered. Lastly, we find that the claim relating to the dismissal of the counterclaim is without merit.
The accident which gave rise to this claim occurred at 5:30 a.m. on November 2, 1993, on W.Va. Route 33 in Randolph County. At the time of the accident, the appellant, Raymond P. Elrick, was driving east toward Elkins, West Virginia, and approaching a lefthand curve. A tractor-trailer driven by the appellee, Larry W. Brown, was heading in a westward direction and negotiating the curve. At the trial of this case, Mr. Elrick testified that immediately prior to the accident he saw the driver's side of the cab of the tractor-trailer across the center line of the road. According to his testimony, when he observed this he moved as far to the right in his lane as he could go without going off the berm. At about the same time, the cab of the tractor-trailer swerved back into the proper lane. Mr. Elrick further testified that as he passed the cab, he observed the trailer of the tractor-trailer, which had not previously been visible because of headlights, jackknifing toward him in his lane. Immediately after this happened, an impact occurred in his lane.
Further evidence showed that after the accident Mr. Elrick's vehicle was resting on his side of the road, halfway on the berm. There was a gouge mark in Mr. Elrick's lane which was caused by Mr. Elrick's vehicle. A State Trooper, Christopher D. Kelly, investigated the accident and was properly qualified as an expert in accident investigation. He testified to a reasonable degree of certainty that the tractor-trailer driven by the appellee, Larry W. Brown, had crossed the center line of the road and, in so doing, had collided with the vehicle driven by Mr. Elrick. Trooper Kelly testified that there was debris in Mr. Elrick's lane and that there was a gouge mark in Mr. Elrick's lane caused by a tire on the driver's side of the Elrick vehicle. According to Trooper Kelly, this gouge mark showed that the point of impact was six feet and seven inches from the berm on Mr. Elrick's side of the road. Mr. Elrick's lane was eleven feet and nine inches wide, and the implication to be drawn from Trooper Kelly's testimony was that the impact occurred five feet and two inches from the center line in Mr. Elrick's lane.
The driver of the tractor-trailer, Larry Brown, testified that he never saw the Elrick vehicle cross the center line of the road, nor could he say that Mr. Elrick was speeding. He testified that he turned wide on the curve where the accident occurred and he saw the Elrick vehicle and remembered that its lights were on. He also claimed that his tractor never crossed the center line but admitted that he could not see his trailer.
At the close of their case, the appellants moved for a directed verdict.
The court denied the motion for a directed verdict for the Elricks but directed a verdict in their favor on the appellees' counterclaim because the appellees had not timely disclosed their witnesses in support of the counterclaim. At the conclusion of the evidence, the appellants offered a number of instructions. In lieu of many of those instructions, the trial court gave a charge covering the same matters.
Among the instructions proffered by the appellants was Plaintiffs' Instruction No. 12. That instruction stated:
The Court instructs the jury that West Virginia law requires drivers of vehicles proceeding in opposite directions on a road to pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction each driver shall give to the other at least one half of the main-traveled portion of the roadway as nearly as possible. Further each driver is justified in assuming the driver of an oncoming automobile will observe this requirement.
Therefore, if you should find from a preponderance of the evidence that the vehicle operated by Larry W. Brown failed to pass Raymond Elrick to the right or to provide him at least one half of the roadway, and that such negligence was a proximate cause or contributing factor of the collision, then you should find for plaintiffs.
On appeal, one of the appellants' principal assertions is that the trial court refused to give instructions...
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