Gretta v. Willhide

Citation118 W.Va. 160
Decision Date15 December 1936
Docket Number(No. 8404)
CourtSupreme Court of West Virginia
PartiesGretta v. Willhide, Executrix, v. Guy H. Biggs et al.

1.Negligence

In order to bar recovery, the negligence of the plaintiff must be such that without it the injuries complained of would not have occurred, and negligence that is merely an indirect contribution to those injuries does not bar recovery. It is error to instruct a jury that the plaintiff may not recover if they find from the evidence that he was guilty of "any negligence that helped" to bring about the injuries complained of.

2.Witnesses

"The phrase, 'personal transaction or communication, ' as used in Code 1931, 57-3-1, includes transactions involving negligent injury." Strode, Admx., v. Dyer, 115 W. Va. 733, 177 s. e. 878. 3. Witnesses

The competence! of a witness to give material testimony may not be challenged for the first time in this court, but must be raised and passed upon in the trial court before it can be made the basis of an assignment of error here. The West Virginia cases holding the contrary which are named in the body of this opinion are, in so far as they conflict herewith, expressly overruled.

Error to Circuit Court, Monroe County.

Action by Gretta V. Willhide, executrix of the estate of Walter L. Willhide, deceased, against Guy H. Biggs and another. To review a judgment for defendants, plaintiff brings error.

Reversed and remanded.

Hatcher, President, and Maxwell, Judge, dissenting in part.

Joseph J. Madden and R. D. Heironimus, for plaintiff in error.

Robinson & Stump, J. M. Holt and W. M. Lafon, for defendants in error.

Kenna, Judge:

From a verdict and judgment in the Circuit Court of Monroe County in favor of the defendants, Guy H. Biggs and E. V. Core, the plaintiff below, Gretta V. Willhide, executrix of the estate of Walter L. Willhide, deceased, prosecutes this writ of error in an action for death by wrongful act. The alleged cause of action arose out of an automobile accident on the 27th day of July, 1934, on the road known as State Routes Nos. 24 and 56, at a point about two miles south of Elkins.

Plaintiff's decedent, at a little before four o'clock in the afternoon, had driven from Elkins and across the Chenoweth Creek bridge to the farm of Earnest Caplinger. After crossing the bridge, he had made a u-turn to the left and had parked his car approximately 188 feet south of the south end of the bridge. In this position, the car faced north and rested on the east side of the highway with its left wheels on the hard surface and its right wheels on the berm of the road. Mr. Willhide got out of his car and walked approximately 100 feet further south on the highway in order to meet and converse with Mr. Caplinger who was coming toward the bridge upon a load of hay that he was hauling. Willhide walked beside the wagon back to a point near his car, and here Caplinger turned the wagon to the left across the road and entered a field through a gate in the fence. For the purpose of getting his fishing rod, Willhide then walked west (some of the evidence indicates that he crossed the road in the opposite direction) across the road and was struck by the automobile owned by the defendant, Guy H. Biggs, and driven by the defendant, E. V. Core, which was traveling south toward Monroe County. The car was a Chevrolet coupe and was occupied by E. V. Core, who was driving, Henry McCoy, who was sitting in the middle of the seat, and Guy H. Biggs, who was sitting on the right.

The first contention of the plaintiff in error, plaintiff below, is that the verdict in favor of the defendants is contrary to the evidence. We are of the opinion that this contention is without merit. The testimony of the plaintiff was to the effect that the automobile which struck her decedent was traveling at the rate of 50 miles per hour or faster; that there was a distance of at least 480 feet of straight road and unobstructed view over the bridge from the point where plaintiff's decedent was struck; and that he was run down while in the center of the highway, in perfectly plain view, in broad daylight and upon a dry road, with no other traffic in sight, and nothing to excuse the negligence of the driver. On the other hand, the testimony of the defendants is to the effect that their automobile, as it came upon the bridge, perhaps 300 or 350 feet from the point where plaintiff's decedent was struck, was traveling between 35 and 40 miles an hour, having slowed down for the crossing of the bridge which is narrower than the highway. When they reached the bridge, they saw plaintiff's decedent some 300 feet away. He was on the right, or west, side of the highway. When something like a 100 feet away, the driver of the automobile blew the horn. Willhide turned and looked in the direction of the car. Instead of stopping or turning back, he proceeded to take one or two steps in the direction of the center of the road, and, in order to avoid him, the driver pulled to the left and applied his brakes. Willhide then quickened his pace toward the center of the road, and in the emergency thus created, the driver of the automobile swerved still further to the left, thinking to avoid him. Instead, Willhide continued and was struck by the right-hand fender of the car, the driver not having been able to turn it far enough to the left to avoid him. Defendants testify that at the time of the impact they were traveling between 15 and 20 miles per hour.

In this state of the evidence, we are of the opinion that it is impossible for us to say that the verdict for the defendants is clearly wrong on the first assignment of error.

Another assignment of error is that based upon the instructions. The plaintiff below, who was accorded eight instructions by the trial court, complained because six instructions also offered by her were not given. Plaintiff also objects to the giving of ten instructions on behalf of the defendants.

In so far as the instructions offered on behalf of the plaintiff are concerned, we are of the opinion that those given fully and fairly presented the case of the plaintiff to the jury. We do not perceive any respect in which the plaintiff's case suffered from the instructions tendered in her behalf and refused.

The principal complaint on account of the instructions given on behalf of the defendants is that they set an incorrect standard by which the jury is told to judge the matter of contributory negligence. Typical of this alleged vice is instruction No. 8, which reads as follows (underscoring supplied):

"The Court instructs the jury that contributory negligence is such negligence on the part of the plaintiff as helped to produce the injury complained of, and if the jury find from all the evidence in this case that the plaintiff was guilty of any negligence that helped bring about or produced the injuries complained of, then your verdict should be for the defendants."

This instruction is binding in form, and the plaintiff below asserts that the standard of any negligence that helped to produce the injuries complained of, is not correct and that it sets up too severe a test.

It has become very difficult to extricate from the mass of case and text declarations on contributory negligence, a rule that may be clearly stated and that adapts itself to practical trial necessities without becoming involved in purely academic and philosophical discriminations which attenuate its usefulness to the disappearing point. The instruction under consideration tells the jury that the plaintiff may not recover if her decedent was guilty of "any" negligence, with the further element that that negligence, to defeat recovery, must have "helped" to bring about the injuries which resulted in the death of the plaintiff's decedent. The case of State V. Surety Co. (more correctly styled Myles, Administrator, V. American Surety Co.), 99 W. Va. 123, 127 S. E. 919, we think, makes it perfectly clear that this is not a statement of the correct rule. In that case, there was a general verdict in favor of the plaintiff in spite of the fact that the jury had answered a special interrogatory by which it found that the plaintiff was guilty of negligence which contributed indirectly to the plaintiff's injury. The trial court set the verdict aside for the reason that it was of opinion that the answer to the special interrogatory was inconsistent with the general verdict. Upon writ of error, the verdict was re-instated by this court and judgment entered here for the plaintiff, the court finding that negligence on the part of the plaintiff which contributed only indirectly to his injuries did not bar recovery. The instruction before us made it possible for the jury in this case to reach exactly the opposite con- elusion. The jury might have concluded that the plaintiff here was guilty of negligence, and that that negligence contributed (or "helped") indirectly to the plaintiff's injury, and for this reason might have found against the plaintiff's contention, in spite of the fact that such conclusions on the part of the jury, under the case referred to, do not bar recovery. A workable test of contributory negligence seems to be that if the plaintiff's negligence was such that, without it, the negligence of the defendant would have brought about the injuries just the same, the plaintiff's negligence does not bar recovery; otherwise, it does. Carrico v. W. Va. C. & P. Railroad Co., 39 W. Va. 86, point 8, Syllabus, 19 S. E. 571, 24 L. R. A. 50. The Virginia court has declared in the case of Norfolk & Western Railway Co. V. Cromers, Admr., 99 Va. 763, 792, 40 S. E. 54, 58, that in order to defeat recovery on the ground of contributory negligence, it is not necessary to show that, but for it, the accident would not have occurred; and has said in the case of Clinehfield Coal Corporation v. Osborne's Administrator, 114 Va. 13, 75 S. E. 750, that in order to defeat recovery, it is not necessary...

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