Forney v. Morrison, 11030
| Decision Date | 03 November 1959 |
| Docket Number | No. 11030,11030 |
| Citation | 144 W.Va. 722,110 S.E.2d 840 |
| Court | West Virginia Supreme Court |
| Parties | Curtis FORNEY v. Roy MORRISON. Roy MORRISON v. Curtis FORNEY. |
Syllabus by the Court.
1. Where two automobiles collide in a curve on a hill and the imprints of one of the automobile's headlights are discernible in the other automobile's fender and door, the mere fact that both automobiles came to rest on their opposite sides of the road, with the automobile in which the headlight imprints appear facing in the opposite direction from that in which it was traveling at the time of the collision, is insufficient to make the manner in which the collision occurred a question of law for the court.
2. Matters relating to the substantive rights of the parties are governed by the law of the place where the injury occurred, while matters pertaining to remedial rights are controlled by the law of the forum.
3. The admissibility, or inadmissibility of evidence pertains to the remedy and is governed by the law of the forum.
4. In a civil action for damages, the conviction of a party thereto, upon a plea of not guilty, of a charge of reckless driving arising out of the same event, is inadmissible to establish negligence.
5. A binding instruction offered in behalf of a plaintiff, which fails properly to negative contributory negligence, is properly refused, if contributory negligence is at issue in the case.
Crockett, Tutwiler & Crockett, Charles A. Tutwiler, Welch, for plaintiff in error.
W. H. Ballard, II., Harry G. Camper, Jr., Welch, for defendant in error.
These actions of trespass on the case for personal injury and property damage were instituted in the Circuit Court of McDowell County, consolidated for trial purposes, and tried to a single jury, which returned a verdict for Forney in the sum of Seventy-Five Hundred Dollars. Forney was a resident of McDowell County, West Virginia, and Morrison a resident of Tazewell County, Virginia. A collision between their automobiles, each being driven by its owner, occurred on a highway in Virginia between the towns of Tazewell and Bishop at about one o'clock a. m. on June 3, 1956. Morrison was driving alone in his car and Forney was accompanied by one Harless Johnson. The collision occurred on a hill and in a curve, which was a right-hand curve to Morrison and a left-hand curve to Forney. According to the testimony of Forney and Johnson, the Forney car was traveling at a rate of speed of about thirty-five miles an hour when the Morrison car came across the center of the highway and struck the Forney car, although Forney had cut sharply to the right to avoid the collision and was hit while the right front wheel of his car was on the berm of the highway. Morrison's testimony is sharply to the contrary. He states that the Forney car was coming down the hill 'very fast', and that shortly before the impact the Forney car skidded across the center line of the highway and collided with the front end of the Morrison car. Damage to the Forney car was confined to the front fender and door on the left side. Several photographs of the highway and the Forney car are in evidence as exhibits and one apparently shows the imprint of the Morrison car's headlights in the fender and door of the Forney car. Two young men traveling in an automobile behind the Forney car testified that Forney, prior to the collision, had been traveling at a rapid rate of speed, and a trooper of the Virginia State Police, who arrived at the scene of the collision about twenty minutes after it occurred gave testimony favorable to Morrison. Principally, in that regard, he stated that the debris which he found was on the Morrison side of the highway. There was other testimony which it is not necessary to relate regarding the physical facts as they prevailed after the collision.
Morrison offered in evidence that testimony of the state trooper to the effect that sometime after June 3, 1956, Forney was arrested for reckless driving, pleaded not guilty before a trial judge in Tazewell County, but was found guilty of the offense and fined therefor. This testimony was objected to and the trial court sustained the objection to it. However, the testimony was taken in the absence of the jury and is part of the record. The evidence is undisputed that whatever caused the cars to collide, after both had come to rest, they were in this position: The Forney car was on the berm on the Morrison side of the highway and pointed in the direction from whence Forney had come. The Morrison car was also on Morrison's opposite side of the highway and on the berm thereof, but pointed in the same direction that Morrison had been traveling and in the same direction that the Forney car was pointed.
Forney testified to the effect that while he was in a hospital recuperating from his injuries, Morrison came to his room and in the presence of several witnesses admitted that the collision was Morrison's fault and agreed to take care of the matter. Morrison vehemently denied this testimony and stated that he went to the hospital only for the purpose of finding out where 'Forney was at'. If that was his purpose he chose an inopportune time for the visit, since the room was filled with relatives and friends of Forney's who corroborated Forney's testimony.
A writ of error to the final judgment of the Circuit Court of McDowell County upon the verdict for Forney was granted by this Court and errors assigned here are:
(1) The verdict is inconsistent with the undisputed physical facts.
(2) The court erred in not permitting Morrison to prove that Forney had been arrested and convicted on a charge of reckless driving growing out of the collision.
(3) The court erred in refusing to give Morrison's instruction 'A'.
(4) In the admission and rejection of testimony.
Upon the first assignment of error it is contended in brief and oral argument that if the Morrison car had crossed the center line of the highway and struck the Forney car, as the latter and his witness testified, the Forney car would have been pushed to the opposite berm of the highway from the one on which it came to rest after the collision, as the evidence indisputably shows the imprint of a headlight at about the center of the Forney car. On the other side it is contended that if the collision occurred as Morrison says it did, the cars could not have ended up in the position in which they were later found.
Upon a careful review of all of the evidence, including the exhibits, it is the view of this Court that the questions arising out of the manner in which the collision is alleged to have occurred by the contending parties was one of fact for the jury and that there are no physical facts shown by the evidence or by the exhibits which produce a question of law for the trial court or for this Court. Automobiles that collide in a curve on a hill do strange things after the collision. Upon that assignment, we are not inclined to disturb the finding of the jury.
The second assignment of error concerns the trial court's...
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