Ercole v. Daniel
| Decision Date | 07 February 1928 |
| Docket Number | 6038. |
| Citation | 141 S.E. 631,105 W.Va. 118 |
| Parties | ERCOLE v. DANIEL. |
| Court | West Virginia Supreme Court |
Submitted January 31, 1928.
Syllabus by the Court.
In a trial of a case, when the plaintiff has given in his evidence in chief, and rests, and the defendant moves to strike out plaintiff's evidence, and his motion is overruled, and the defendant excepts, but goes on with the trial, giving in his evidence, he will be held to have waived the exceptions to such ruling.
In an action for recovery of damages for personal injuries sustained by plaintiff by reason of being struck by an automobile, proof that defendant was the owner of the automobile that caused the injury, and that the injury was the result of negligence of the driver thereof, creates a presumption that the driver, when the collision occurred, was in the service of the owner, and operating it on his account.
Where in such case the defendant submits no evidence to rebut such presumption, he is not prejudiced by a binding instruction given on behalf of the plaintiff in which the element of such relationship is omitted.
An instruction must be considered as a whole in determining whether the law applicable to the particular case is properly expressed therein.
Applications for a new trial on the ground that the verdict is not supported by the evidence, or that it is against the weight of the evidence, are addressed in the first instance to the sound discretion of the trial judge. When this discretion has been exercised, and the motion for a new trial overruled this court will not interfere, if there is any appreciable evidence which would justify the jury in reaching the conclusion set forth in the verdict.
Additional Syllabus by Editorial Staff.
In action for injuries from being struck by automobile instruction to allow plaintiff damages for injuries, mental and physical pain, suffering, and loss of time which plaintiff might have sustained held not erroneous for not limiting such damage to what he did sustain as shown by evidence, in view of subsequent part of instruction leaving jury to determine from all evidence whether plaintiff was injured by defendant's negligence, and extent thereof.
Evidence held to support judgment against owner of automobile for injury by automobile driven by owner's son.
Error to Circuit Court, Raleigh County.
Action by Antonio Ercole against F. L. Daniel. Judgment for plaintiff, and defendant brings error. Affirmed.
Hubard & Bacon, of Fayetteville, for plaintiff in error.
D. D. Ashworth and C. R. Harless, both of Beckley, for defendant in error.
This action was instituted in the circuit court of Raleigh county to recover for personal injuries sustained by plaintiff by reason of his having been struck by defendant's automobile, driven by the latter's son, Dyrle. The jury brought in a verdict in favor of the plaintiff for $2,000, and from the judgment on the verdict the defendant prosecutes this writ.
The accident occurred in March, 1926, on a long grade, locally known as the Mabscott hill, situate near the city of Beckley. Snow had been falling, and the road was very slick. At the point of the accident the hard-surface portion of the highway is 10 feet in width, with approximately a 5-foot shoulder on each side, making a total space of 20 feet over which automobiles and other vehicles could be driven in safety. Dyrle Daniel was driving down the grade. With him were Ruby Gray, Maycel Stevens, Mary Baldwin, Bessie De Weese, and Virginia Daniels. The other two eyewitnesses to the accident were the plaintiff and a person named L. S. Price. Plaintiff was walking up the grade, and Price was in a Ford automobile going in the same direction.
The plaintiff states that he was following a path along the left-hand shoulder of the road, and that defendant's car was running down the hill at a great rate of speed. L. S. Price, who was driving on the right side of the road next to the hollow, states that he had not passed the plaintiff, but was practically even with him; that he saw the Daniel car approaching at a dangerous rate of speed, "driving all over the road"-running from 20 to 30 miles an hour. This witness further testifies that he drove his Ford automobile over within about one foot from the brink on the right of the road, and stopped; that Daniel's automobile turned sideways on the slick road, the front end going towards the bank and towards Ercole on Daniel's right-hand side of the road, and the rear end of Daniel's car struck the left front wheel and fender of Price's car. Plaintiff states that he jumped from the path across a ditch on his left, and was attempting to climb the bank when Daniel's car struck him and pinned him against a loose stump lying on the bank. He was severely cut about the face; his spine was sprained and bruised, and he was permanently injured and disabled.
The defendant's witnesses state that Dyrle had the car in second gear, and was not going more than 10 to 15 miles an hour; that he had the car under control, and would have had room to pass Price's car had plaintiff not suddenly jumped out from a position back of Price's car in front of the approaching automobile; and practically all of them state that Price rode into Beckley with them, and that he stated on the way in that the accident could not be helped.
The declaration contained three counts. The first is drawn on the doctrine of respondeat superior, while the second and third allege that the defendant kept, maintained, etc., the car for the use, comfort, convenience, etc., of himself and the several members of his family.
At the conclusion of the plaintiff's evidence the defendant moved to strike the same and direct a verdict. The court's action in overruling this motion is made the basis of defendant's first ground of error. After the motion had been overruled and an exception taken thereto, the defendant proceeded to introduce testimony on his own behalf. By this action on his part he will be held to have waived the exception to such ruling. Fuller v. Margaret Mining Co., 64 W.Va. 437, 63 S.E. 206; Young v. Railroad Co., 42 W.Va. 112, 24 S.E. 615; Roanoke Grocery & Milling Co. v. Watkins, 41 W.Va. 787, 24 S.E....
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