Fleming v. McMillan

• Citation: 125 W.Va. 356
• Decision Date: 16 February 1943
• Docket Number: (No. 9383)
• Parties: Cleo Fleming, Administrator, etc. v. Clyde S. McMillan
• Court: Supreme Court of West Virginia

125 W.Va. 356

Cleo Fleming, Administrator, etc.

v.Clyde S. McMillan

(No. 9383)

Supreme Court of Appeals of West Virginia.

Submitted January 19, 1943.

Decided February 16, 1943.

1. Negligence

The violation of a statute does not establish actionable negligence unless there is sufficient evidence from which the jury may find by a preponderance thereof that such violation was the proximate cause of the injury.

2. Negligence

"Negligence is never presumed; it must, when relied on as the basis of an action for damages, be established by a preponderance of the evidence, and unless so established the plaintiff is not entitled to recover and the court should so instruct the jury." Pt. 4, Syl., Fleming v. Hartrick, 100 W. Va. 714, 131 S. E. 558.

Error to Circuit Court, Doddridge County.

Action by Cleo Fleming, administrator, etc., against Clyde S. McMillan, to recover damages for death of plaintiff's decedent, Ada Fleming. To review a judgment for defendant, based on a directed verdict, the plaintiff brings error.

Affirmed.

Clay D. Hammond, for plaintiff in error. S. A. Powell and P. Douglass Farr, for defendant in error.

Lovins, Judge:

This action was instituted to recover damages for the death of plaintiff's decedent, Ada Fleming. At the conclusion of the testimony on behalf of the plaintiff, the trial court, on motion of the defendant, excluded the evidence offered by the plaintiff, and directed the jury to find a verdict for the defendant. A motion to set aside the verdict was overruled, judgment of nil capiat rendered, and adjudged costs to defendant to be paid from the assets of the estate of the plaintiff's decedent. The case comes to this Court on writ of error.

The plaintiff's decedent suffered fatal injuries while walking on or near a public highway known as U. S. Route 50 near the Town of West Union. The road is straight and level for approximately two thousand feet east and three hundred feet west of the scene of the accident, which occurred shortly before nine p. m., October 26, 1940. The defendant was proceeding alone in his automobile in a westerly direction toward West Union. After the collision he drove to a gasoline filling station approximately three hundred feet from the place of the accident, alighted from his automobile and said to an attendant, "I hit someone or something down the road," and immediately he and another person, there present, ran toward the scene of the accident. When defendant arid his companion arrived at the place of the accident, the sheriff, one of his deputies, and a constable were there, having found the bodies of Ada Fleming and Henry Hughes lying in a ditch along the north side of the road, the body of Hughes being approximately seventeen feet distant in a westerly direction from that of Ada Fleming, who died from her injuries shortly thereafter.

Immediately north of the ditch was a bank higher than the surface of the road. An inspection of the scene of the accident, made on the following morning, disclosed that there were signs that a body had rested on this bank above the road level. A blood spot, a watch, some coins and false teeth were likewise found on the bank. Blood and hair were found on the windshield and right door of defendant's automobile. The right front fender and right door of the automobile were dented, and the right headlight damaged. The defendant stated shortly after the accident that he had struck the deceased. Shortly after the accident defendant, who did not testify, also stated to a member of the Department of Public Safety that he saw the deceased and her companion, swerved his automobile to the left to avoid striking them, and that the lights of a vehicle traveling in the opposite direction "blinded" him.

A member of the Department of Public Safety was permitted to give his opinion that defendant's automobile was operated at a high rate of speed at the time of the accident, but the witness refused to give an opinion as to the exact rate of speed. The plaintiff offered evidence to the effect that defendant had been involved in another accident a short time prior to the one in which Ada Fleming lost her life; that he had the odor of liquor on his breath, one witness saying that he was under the influence of "something" prior to the accident and was repetitious in his conversation, but the witnesses by whom this evidence was offered, including the one testifying as to the prior occasion, stated that at the scene of the latter accident defendant had the odor of liquor on his breath but no unusual conduct on his part was observed. The court excluded the evidence as to the prior accident and intoxication of defendant.

Plaintiff contends that the court erred (1) in directing a verdict for the defendant because (a) a prima facie case had been made on behalf of the plaintiff, (b) the verdict was inconsistent with the physical facts, (c) the verdict was contrary to the plain preponderance of the evidence; (2) in excluding the evidence (a) of defendant's intoxication, (b) of the prior accident; and (3) in refusing to apply the...