Fischer v. Clark

• Decision Date: 28 April 1931
• Docket Number: (No. 6891)
• Citation: 110 W.Va. 420
• Court: West Virginia Supreme Court
• Parties: William F. Fischer v. Edgar Clark, Jr., et als.

110 W.Va. 420

William F. Fischer

v.Edgar Clark, Jr., et als.

(No. 6891)

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1931.

Decided April 28, 1931.

1. Evidence

Physical facts, in order to overcome and nullify verbal testimony, must be established by uncontroverted evidence, or admitted to be true.

2. Appeal and Error

Where a plaintiff is negligently injured by one or both of two defendants, the issue being as to which of the two defendants proximately caused the injury, and the evidence is in sharp conflict on that issue, a verdict against one of the defendants and exonerating the other will not be disturbed as contrary to the law and evidence.

Error to Circuit Court, Ohio County.

Action by William F. Fischer against Edgar Clark, Jr., and Ilallett & Co. To review an adverse judgment, defendant last named brings error.

Affirmed.

Tom B. Foiilk, for plaintiff in error. David A. McKee, for defendant in error.

Lively, Judge:

From a judgment rendered on a verdict for $750.00 defendant, Ilallett & Co., prosecutes error. Judgment was entered July 12, 1930.

The litigation arises out of an automobile accident on National Road, January 22, 1927.

Fischer, plaintiff, was sitting in his car parked on the right- hand side of National Road looking east about five o'clock, p. m., and was talking to Harry McCormick, who was standing on the sidewalk near him. Defendant, Edgar Clark, with his wife and son(nine years old) was in his Chevrolet car, parked just behind him; defendant, Hallett & Company's Ford truck was proceeding eastward on the road at a speed of from 20 to 25 miles per hour; Clark had backed his Chevrolet with the intention of moving out into the road to the left of Fischer's car when some part of Ilallett's truck struck his left front hub cap projecting the Clark car against the Fischer ear with sufficient force to drive its front wheel onto the sidewalk, causing damage to the Fischer car and personal injuries to Fischer. The jury found for plaintiff against Hallett & Co., and exonerated Clark from negligence charged against each of them. Hallett & Co. says it was not negligent, and the jury could not properly so find; that Clark's negligence was the proximate cause of the accident; and that the trial court committed error in not instructing a verdict in Hallett's favor; and that the evidence not being sufficient to convict it of blame, the court erred in not sustaining its motion to set aside the verdict and award a new trial. This assignment of error calls for a careful inspection of the evidence. The case was submitted for decision in this Court without appearance for Fischer.

Was Clark's negligence, if any, the proximate cause? Was Hallett's negligence the proximate cause? These were the controlling questions. The jury has said that Hallett was negligent, and exonerated Clark. Does the evidence warrant such finding? Clark says he had been to a store on the opposite side of the road, and returned to his parked Chevrolet immediately back of Fischer's car; that his wife and nineyear old son were in the car, and his wife was talking to Clelland and his wife, standing nearby on the sidewalk; that he got into his car and started the engine about the time Clelland and wife walked away, then looked back to see "if anybody come"; that he saw the truck coming at about 126 feet away (back of the crossing below McCausland's store and Stone Church); that he then backed his car three or four feet against the curb, and, as he backed, twisted his front wheels sharply to the left, throwing his right front wheel about eighteen inches from the curb, stopped and again looked back and saw the truck two or three car lengths to his rear; that he then remained stationary in that position with the car out of gear and with one foot on the clutch pedal, and the other foot on the brake pedal; that the truck came on and hit his left front wheel hub cap, projecting his car against the Fischer car in front, knocking the front wheel of the latter upon the sidewalk. He is corroborated by Harry McCormack, who was standing on the sidewalk near the Fischer car, and who says Clark backed away from the Fischer car and turned his wheels, but could not say that he pulled away from the curb. He says that Clark turned his wheels by the steering gear and not by.moving the car forward. Mrs. Clark gives the same evidence. The contention of Hallett is that Clark was pulling out from the curb into the traffic when he was, struck by the oncoming truck; that he gave no warning that he was so doing; that he drove his car into the truck as it passed, and that the rear part of the truck struck the wheel cap; in short, that his statement of his actions and that of his corroborating witnesses could not be true, because the truck was proceeding in a straight line, and that the right rear wheel of the truck came in contact with the wheel cap of the Clark car. That the left front wheel cap of the Clark car was struck by the right rear wheel of the truck is assumed as true, because Fischer's declaration so...