Gilbert v. Lewisburg Ice Cream Co.

• Citation: 184 S.E. 244,117 W.Va. 107
• Decision Date: 25 February 1936
• Docket Number: 8265.
• Parties: GILBERT v. LEWISBURG ICE CREAM CO.
• Court: Supreme Court of West Virginia

184 S.E. 244

117 W.Va. 107

GILBERT v. LEWISBURG ICE CREAM CO.

No. 8265.

Supreme Court of Appeals of West Virginia.

February 25, 1936

Submitted January 14, 1936

Syllabus by the Court.

1. It is ordinarily a question of fact for the jury to determine whether or not a motorist is justified in turning to the left in order to avoid another vehicle coming from the opposite direction on the wrong side of the road.

2. The recent purchase price of an automobile, in the absence of other proof, is presumptive evidence of its value.

Error to Circuit Court, Greenbrier County.

Action by Christine H. Gilbert against the Lewisburg Ice Cream Company. To review a judgment for plaintiff, defendant brings error.

Affirmed.

H. L Van Sickler, of Lewisburg, and Joseph M. Holt, of Clarksburg for plaintiff in error.

E. L Maxwell, of Elkins, for defendant in error.

LITZ Judge.

Defendant, Lewisburg Ice Cream Company, a corporation, is aggrieved by a judgment rendered against it on the verdict of a jury in favor of the plaintiff, Christine H. Gilbert, for personal injuries, and damages to her automobile in the sum of $5,625.

Plaintiff was injured in a collision between her automobile, in which she was riding while driven by her husband, J. C. Gilbert, and a motortruck owned and operated by defendant. The automobile was practically demolished. The accident occurred about 7:45 a. m., September 14, 1934, near the village of Maxwelton, in Greenbrier county, on what is known as the Seneca Trail highway (officially designated United States route 219), the hard surface of which is 16 feet in width. The machines were traveling in opposite directions, and collided on the left side of the road in the direction the automobile was moving. According to the testimony of Mr. and Mrs. Gilbert, the truck was 85 or 90 feet away, when it first came into view, traveling entirely on the left side of the road, and that Gilbert immediately steered the automobile to the opposite side for the purpose of avoiding a clash. This expedient failed because the truck driver, on discovering the automobile, turned the truck to the right. The truck driver admits that the truck was occupying a large portion of the left side of the road shortly before the accident, but states that it had moved completely to the right side before the collision.

Defendant contends (1) that, even though the truck had remained on the left side of the road up to the point of accident, the driver of the automobile could have prevented the collision by driving on to the right berm; (2) that the automobile was traveling at an excessive rate of speed; and (3) that the issue of damages to the automobile should not have been submitted to the jury.

First. Gilbert says he could not have safely driven over the right berm. It is ordinarily a question of fact for the jury to determine whether or not a motorist is justified in turning to the left in order to avoid another vehicle coming from the opposite direction on the wrong side of the road. Lawson v. Dye, 106 W.Va. 494, 145 S.E. 817, 63 A.L.R. 271, 280; 24 A.L.R. 1304, 1308; Sullivan et al. v. Morris, 50 Ga.App. 394, 178 S.E. 324. Accord: 79 A.L.R. 1277, 1295; 27 A.L.R. 1197, 1206; 6 A.L.R. 680. "The driver of a vehicle may be justified in leaving the right-hand side of the road when he is in danger of a collision with another vehicle which is violating the...