Haldren v. Berryman

Decision Date03 February 1930
Docket NumberNo. 6803.,6803.
CourtWest Virginia Supreme Court
PartiesHALDREN. v. BERRYMAN et al.
Syllabus by the Court.

Objections to evidence, unless made the subject of special bills of exception or specifically presented to the trial court as grounds of a motion to set aside the verdict and for a new trial, will not be considered on writ of error to this court Trippett v. Public Service Co., 100 W. Va. 321, 1st Pt. Syl., 130 S. E. 483.

Syllabus by the Court.

It is not error to refuse an instruction which charges the jury that the law presumes that a man in any given state of circumstances exercised reasonable care for his own safety, where the evidence rebuts that presumption.

Syllabus by the Court.

Instructions must be read together; and, where the jury is properly charged on the law of theories presented by both plaintiff and defendant, no error will be inferred from an instruction which, though inaptly drawn, does not mislead the jury.

Additional Syllabus by Editorial Staff.

Error to Circuit Court, Mercer County.

Action by John W. Haldren, administrator of the estate of Richard Rose, deceased, against C. H. Berryman and another. Judgment for defendants, and plaintiff brings error.

Affirmed.

N. Clarence Smith and R. O. Crockett, both of Tazewell, Va., and John R. Pendleton, of Princeton, for plaintiff in error.

Sanders, Crockett, Fox & Sanders, of Blue-field, for defendants in error.

LIVELY, P.

In this action, the administrator of the estate of Richard Rose, deceased, sues to recover damages on account of the death of Richard Rose, alleged to have been caused by the negligent driving of an automobile of defendant Bradley, an employee of defendant Berryman. The jury returned a verdict for defendants, and plaintiff appeals from the judgment entered on the verdict, charging that the lower court erred in admitting certain evidence, in refusing instructions offered on behalf of plaintiff, and in allowing improper instructions offered by defendants.

About 7 o'clock in the evening of January 25, 1929, Richard Rose was found lying in the highway leading from Tazewell, Va., to Bluefield, W. Va., at a point in Tazewell county, Va. One leg was crushed, an arm broken, and his chest bruised. He died the next afternoon. There were no eyewitnesses to the injury.

Richard Rose, seventy years of age, had been seen about two hundred and fifty yards east of George Hurt's home (the point where he was found) by witness Wingo, who testified that Rose was walking westward toward Tazewell in the same direction and on the same side of the road that he was driving, and that Rose crossed the road in front of his car, thereby nearly causing Wingo to wreck his car in order to avoid hitting decedent. About the same hour Bradley and his companion Sheppard were traveling east toward Bluefield in a truck belonging to the defendant Berryman, and were seen at the Claypool Filling Station, about 500 yards west of Hurt's home. George Hurt testified that, while sitting in his home, he heard a crash, ran out on his porch, saw an automobile andtwo young men (dressed in coats which answered a description of those worn by Bradley and his companion) who came in front of the car for a moment, returned into the automobile, and, after some effort to adjust it from the ditch into the road, left. A few minutes thereafter he heard a second car stop and upon investigation learned of decedent's injury. Robert Craig recognized the Berry-man truck, driven by Bradley towards Blue-field, when it passed the car in which Craig was driving in the direction of Hurt's home, about a mile from the point where the decedent was found. He stated further that he had passed no other car on the highway that evening. Likewise, witnesses stated that no cars had passed the station between the time the Berryman truck left the station until Rose was found, but witness Wingo stated that a Dodge touring car passed him just west of the filling station, going in the direction of Hurt's home. There was testimony, offered by plaintiff, to the effect that defendant's car was seen with but one headlight burning; that a headlight, introduced as evidence, was found in the highway; that two days after the alleged injury defendant's truck was examined, at which time it was found that one headlight had been put on recently, and that the bolt which held the headlight in the socket had been recently tightened, so that there was no rust on the bolt; also a number of short gray hairs, not introduced at the trial, were found on the edge of the fender, held there by mud, and that both the fender and the headlight showed signs of having hit something. At the point where decedent was found, there were marks indicating that a car had skidded for a distance of approximately one hundred and fifty feet, first on the right-hand side of the road going toward Blue-field, then across the road to the left side thereof, where the injured man was found. There is, however, no direct evidence that the marks were made by defendant's automobile or that Hurt heard the brakes go on before he heard the crash.

Bradley and his companion deny that the truck in which they were driving hit Rose or that they even saw him. Shortly after 8 o'clock on the evening on which the alleged injury occurred, Bradley was seen driving a truck in Bluefield on which both headlights were burning. There is evidence adduced that the headlight and fender were damaged on the morning following the alleged injury by pushing another car; that the headlight introduced in evidence had not been on defendant's car several days before the injury; that there were four skid marks on the highway where decedent was found for a distance of fifty feet; that defendant's car had only...

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