Griffith v. Wood, 12539

• Decision Date: 28 June 1966
• Docket Number: No. 12539,12539
• Citation: 149 S.E.2d 205,150 W.Va. 678
• Court: West Virginia Supreme Court
• Parties: Lakie I. GRIFFITH et al. v. Daily WOOD et al.

Page 205

149 S.E.2d 205

150 W.Va. 678

Lakie I. GRIFFITH et al. v. Daily WOOD et al.

No. 12539.

Supreme Court of Appeals of West Virginia.

Submitted May 12, 1966.

Decided June 28, 1966.

Syllabus by the Court

1. Ordinary the mere occurrence of an accident does not give rise to the presumption of negligence.

2. The owner or operator of a private automobile is not an insurer of the safety of his guest. The exercise of reasonable care by him for the safety of his guest is the requirement of the law.

3. To permit a recovery of damages in an action based on negligence the negligence of the defendant must be the proximate cause of the injury for which the plaintiff seeks to recover; and in such action the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains.

4. When the material facts are undisputed and only one inference may be drawn from them by reasonable minds the questions of negligence and contributory negligence are questions of law for the court.

D. D. Ashworth, Anthony J. Sparacino, Beckley, for appellants.

Bowers, File, Hodson & Payne, Donald D. Hodson, W. H. File, Jr., Beckley, for appellees.

HAYMOND, Judge.

This action, instituted in the Circuit Court of Raleigh County on June 24, 1963, is based on the alleged negligence of the defendants, Daily Wood and Pauline Wood, who are husband and wife. The plaintiffs, Lakie I. Griffith and Dennis Griffith, also a married couple, seek a recovery for personal injuries to Lakie I. Griffith, the wife of Dennis Griffith, and for medical expenses incurred and loss of services sustained by her husband, which resulted from the operation by the defendant Pauline Wood of a 1955 Ford Pick-up truck owned by her husband, the defendant Daily Wood, about ten o'clock on the night of June 28, 1962, on or near the intersection of a side road known as the 4--H Road with U.S. Highway No. 19--21 in Raleigh County. The injuries of which the plaintiffs complain were sustained by the plaintiff Lakie I. Griffith, who was riding on the right side of the single seat of the truck and who fell or was thrown from the vehicle when the door on the right side came open while the driver was engaged in making a left turn on the intersection to enter the U.S. Highway from the side road.

At the conclusion of the evidence in behalf of the plaintiffs, the circuit court, on motion of the defendants, by order entered March 22, 1965 struck the evidence in behalf of the plaintiffs and directed a verdict in favor of the defendants, rendered judgment that the plaintiffs take nothing and awarded costs in favor of the defendants. By its final judgment rendered July 23, 1965, the circuit court denied the motion of the plaintiffs to set aside the verdict and award the plaintiffs a new trial. From that judgment this Court granted this appeal on the application of the plaintiffs.

Following the pretrial conference the circuit court entered an order on March 18, 1965, which by agreement of the parties contained a statement that the defendant Daily Wood was the owner of the truck in which the plaintiff Lakie I. Griffith was injured; that the family purpose doctrine applied to his wife Pauline Wood, the driver of the truck at the time of the injury; and that the injury occurred on or near the intersection of U.S. Highway 19--21 and the 4--H road in Raleigh County. The order also contains certain contentions of the plaintiffs that Lakie I. Griffith and Pauline Wood were fellow employees, working in the kitchen of the 4--H Camp and were returning from that place to their homes in the pick-up truck of the defendant Daily Wood; that 'as the defendant driver approached the intersection in question, she gave a turn signal, stopped at the intersection, and, due to the angle and grade of the intersection, made a sharp left turn into Route 19; that defendant disengaged the clutch abruptly, causing the truck to spurt forward; that the door on plaintiff's side flew open, causing the plaintiff to fall; that as she was falling defendant applied the brakes suddenly, causing the door to snap back and strike plaintiff, who was falling to the pavement of the highway;' that the plaintiff Lakie I. Griffith sustained severe bruises, cuts, injury to a nerve in her back, her right hand, the ninth and tenth dorsal area, swelling of the leg, hip and thigh, bruised elbows, and injury to the cervical area, and suffered headaches, and that she sustained permanent injury. The contentions of the defendants, among others set forth in the order, were that the plaintiff Lakie I. Griffith closed the door when she entered the truck and had control of the door; that the occupants of the truck had driven two to four miles as the plaintiff sat next to the door before the accident occurred; that the defendants had no previous trouble with the door; that it was examined by a mechanic and no defect was found; that the defendant driver was guilty of no act of negligence; and that the defendants are free from negligence.

Other than the driver of the truck and the plaintiff Lakie I. Griffith, there were no eye-witnesses to the accident. The evidence of the manner in which the injury occurred and the condition of the truck at and before the accident consists of the testimony of each of the plaintiffs, one of their daughters, and the defendant Daily Wood.

The substance of the assignments of error by the plaintiffs is the action of the circuit court (1) in striking the evidence in behalf of the plaintiffs as to the manner in which the defendant Pauline Wood operated the truck on and near the intersection and the condition of the truck at and before the accident in which the plaintiff Lakie I. Griffith was injured; (2) in refusing to hold that the defendant Pauline Wood violated certain statutes in the operation of the truck and that violation of such statutes constituted prima facie negligence; and (3) in refusing to apply the doctrine of res ipsa loquitur to the facts established by the evidence.

The plaintiff Lakie I. Griffith testified that when she got in the truck the defendant Pauline Wood shut the door; that when the truck came near the intersection the driver stopped it and then pulled out fast and swirled around; that as it came out fast the plaintiff Lakie I. Griffith was thrown from the truck; and that she did not sit or lean against the door at any time. She also testified that on the morning after the accident while Pauline Wood was driving her back to the 4--H camp to work she told the plaintiff Lakie I. Griffith that on one prior occasion when she caused the truck to make a sharp turn the door came open and her husband almost fell out of the truck; that she should have told the plaintiff about that matter; and that she did not examine the door or know that there was anything wrong with it. The plaintiff Lakie I. Griffith, on cross-examination, evidently for the purpose of contradiction, was asked a number of questions, some of which were whether she had previously stated that she closed the door when she got in the truck; whether she had stated that she did not know if she was leaning against the door when the truck was making the turn; whether she had stated that the driver of the truck in coming out the road into Highway 19--21 'was coming out very slow'; and whether she had said that she did not know that the driver of the truck had done anything wrong in connection with the accident and that she could not say why the door came open. The plaintiff Lakie I. Griffith did not deny or explain the statements in any of these questions but to each of them answered 'I don't recall.' As the trial court directed a verdict for the defendants before they had an opportunity to introduce their evidence they could not and did not offer any evidence to contradict the foregoing statements.

The plaintiff Dennis Griffith testified that the defendant Daily Wood, in a conversation about two weeks after plaintiff Lakie I. Griffith was injured, told him that the truck was 'kinda tricky' and that the door 'come open sometimes', and that he said with reference to the truck 'Well, mine ought to be fixed.'; that on the same occasion the defendant Pauline Wood told him that when she went to the school house 'if the door got to rattling she would stop and fasten it to keep it from coming open, and lock it.'

The daughter of the plaintiffs, Carolyn Griffith, testified that about two weeks after the injury when she and her father and mother were visiting at the home of the defendants, the defendant Pauline Wood told the witness that whenever she would go to school if the door would start rattling she would stop, get out, go around and shut it, and be sure that the door 'was shut good.'

The defendant Daily Wood, called as a witness by the plaintiffs, testified that about three or four years before the plaintiff Lakie I. Griffith was injured the truck had been involved in a wreck in which the front of the truck had been damaged to the extent of about $270.00; that the radiator and the front bumper were damaged and the frame over the front axle was bent; that the damage to the truck had been repaired; and that in the wreck no damage had been done to the right door of the truck.

The contentions of the plaintiffs concerning the manner in which the injury occurred, as set forth in the pretrial conference order of March 18, 1965, that the driver disengaged the clutch abruptly and caused the truck to spurt forward and that as the plaintiff Lakie I. Griffith was falling the driver applied the brakes suddenly and causes the door to snap back and strike the plaintiff, are not supported by the evidence. Though the evidence shows that the driver of the truck stopped at or near the intersection, there is no evidence that she disengaged the clutch abruptly or caused the truck to spurt forward or that as the plaintiff Lakie I. Griffith was falling...