Hartley v. Crede

• Citation: 82 S.E.2d 672,140 W.Va. 133
• Decision Date: 01 October 1954
• Docket Number: No. 10651,10651
• Court: Supreme Court of West Virginia
• Parties: HARTLEY, v. CREDE et al.

Page 672

82 S.E.2d 672

140 W.Va. 133

HARTLEY, v. CREDE et al.

No. 10651.

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1954.

Decided July 27, 1954.

Rehearing Denied Oct. 1, 1954.

Syllabus by the Court.

1. A declaration in tort for personal injuries which charges the duty of the defendant, that such duty was breached by his particular acts or omissions, stated with reasonable certainty, and that the injuries and the damages complained of were caused by such negligent acts or omissions, is good on demurrer.

2. To recover in an action based on negligence 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.

3. To be actionable, negligence must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.

4. Concurrent negligence occurs when two or more persons are guilty of negligence and the negligence of each in point of time and place concurs and proximately causes or contributes to the injury of another person.

5. The proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.

6. 'One requisite of proximate cause is an act or an omission which a person of ordinary prudence could reasonably foresee might naturally or probably produce an injury, and the other requisite is that scuh act or omission did produce the injury.' Point 4, Syllabus, Matthews v. Cumberland and Allegheny Gas Company, W.Va. .

7. An intervening cause of an injury is a negligent act or omission which constitutes a new effective cause and which, operating independently of anything else, is the proximate cause of the injury.

8. 'To warrant a finding that negligence is the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligent act and that it ought to have been foreseen in the light of the attending circumstances.' Point 3, Syllabus, Matthews v. Cumberland and Allegheny Gas Company, W.Va. .

9. 'Where in a trial of an action at law before a jury, the verdict returned is without evidence to support it, or is plainly wrong, it will be set aside by this Court, the judgment entered thereon reversed and the case remanded for a new trial.' Syllabus, DeLuz v. Board, 135 W.Va. 806 .

10. 'When the material facts are undisputed and reasonable men can draw only one conclusion from them the question of negligence is a question of law for the court.' Point 6, Syllabus, Matthews v. Cumberland and Allegheny Gas Company, W.Va. .

11. The general rule, subject to certain exceptions, is that a party can not impeach his own witness in the trial of a civil or a criminal case, in the absence of a statute which permits such impeachment.

Peters, Snyder, Merricks & Leslie, H. L. Snyder, Charleston, for plaintiffs in error.

Lilly & Lilly, R. G. Lilly, Charles Mottesheard, Charleston, for defendant in error.

HAYMOND, Judge.

This action of trespass on the case was instituted in the Circuit Court of Kanawha County in August, 1951, by the plaintiff Clyde R. Hartley to recover from the defendants Harry Crede and his son Harry Crede, Jr., damages for personal injuries sustained by the plaintiff in connection with a series of automobile collisions on a public highway of this State known as U. S. Route 119, between Charleston and Big Chimney, in Kanawha County in which an automobile owned by Harry Crede and driven by Harry Crede, Jr., was involved. The plaintiff charges that the concurrent negligence of the defendants was the proximate cause of his injuries, and he seeks to recover damages in the sum $40,000.00.

Upon the trial of the case the circuit court overruled motions of the defendants to direct a verdict in their favor and the jury returned a verdict for the plaintiff and against both defendants for $9,000.00. The circuit court also overruled a motion of the defendants to set aside the verdict and award a new trial and entered judgment upon the verdict. To that judgment the defendants prosecute this writ of error.

The amended declaration, to which the demurrer of the defendants was overruled and their plea of the general issue was filed, charges in substance that the defendant Harry Crede, Jr., a member of the family of Harry Crede, while driving an automobile of the defendant Harry Crede with his knowledge and consent, on the night of December 25, 1950, on U. S. Route 119, in a westerly direction from the town of Big Chimney to the City of Charleston, became involved in a collision with another automobile which had also been driven in a westerly direction and had been involved in a collision with another automobile which had been driven in the same direction; that the front end of the automobile driven by Harry Crede, Jr., became fastened to the rear end of the automobile in front of it; that until the automobile driven by Harry Crede, Jr., was disengaged from the other automobile it remained upon the paved portion of the highway; that after it was so disengaged it was negligently allowed to remain upon the paved portion of the highway for an unreasonable length of time in violation of the traffic laws of this State; and that the defendant Harry Crede, Jr., negligently failed to use due care to warn other motorists of the presence of the automobile on the highway; that the defendant Harry Crede, on the same night, was driving another motor vehicle owned by him, a truck, on U. S. Route 119, in an easterly direction from the City of Charleston toward the town of Big Chimney; that when he reached a point on the highway approximately opposite the automobile driven by the defendant Harry Crede, Jr., he drove and placed the truck on the right berm of the highway with the front of the truck pointed toward the highway; that he negligently caused and permitted the bright lights on the truck to burn after it was so placed; that the bright lights would and did interfere with and prevent persons driving in a westerly direction from seeing the automobile negligently allowed to remain on the highway by the defendant Harry Crede, Jr.; that the plaintiff at the request of the wife of Harry Crede, undertook to assist in unfastening the automobile driven by Harry Crede, Jr., from the automobile in front of it; that after the automobile had been disengaged the plaintiff and other persons stood on the berm of the highway near the rear of the automobile; tht while the plaintiff stood in that place Frances Smith operating a truck in a westerly direction on the highway, in her efforts to avoid colliding with the automobile driven by the defendant Harry Crede, Jr., which she was prevented from seeing until she was 'practically on it' due to the glare and bright lights of the truck of the defendant Harry Crede, drove the truck upon the berm of the highway and struck and seriously and permanently injured the plaintiff in his person; that the injuries of the plaintiff were caused by the concurrent negligence of the defendants; and that the plaintiff was without fault.

The plaintiff was injured while standing on the berm on the north side of a straight section of U. S. Route 119 which in that locality extends generally from east to west. The paved portion of the highway, which is level and straight for a distance of approximately 475 feet east, and for more than 300 feet west, of the place of the injury, is 20 feet in width. The berm, which is level with the paved surface of the road, is about 6 feet wide on the north side and about 23 feet wide on the south side of the highway in front of a building referred to in the evidence as the Johnson Store and which is almost directly opposite the point where the plaintiff was injured. About 475 feet to the east of the center of the Johnson Store a 14 foot concrete road, known as the Coopers Creek Road, intersects the northern side of U. S. Route 119, and about 75 feet east of and diagonally across the road from the store a 16 foot gravel road intersects the north side of the highway on an angle. Between the place of the injury and the intersection of the Coopers Creek Road a steel bridge, forming a part of U. S. Route 119 and 143 feet in length, crosses Coopers Creek and the west end of the bridge is approximately 150 feet east of the place of the injury. The objects mentioned are located on, and the various distances indicated are calculated from the scale of, a map introduced in evidence by agreement of the attorneys for the respective parties.

Between six o'clock and seven o'clock in the evening of December 25, 1950, the defendant Harry Crede, Jr., then 18 years of age and a member of the family of the defendant Harry Crede, accompanied by a young lady, was proceeding west on U. S. Route 119, in a Dodge automobile owned by his father, the defendant Harry Crede. At a point west of the Coopers Creek Bridge and almost directly opposite the Johnson Store the automobile driven by the defendant Harry Crede, Jr., became involved in a series of end to end collisions with three other automobiles also traveling west on the highway a short distance in front of it. The first of the three automobiles suddenly checked its speed or stopped, the second automobile struck the rear of the first automobile, the third automobile struck the rear of the second automobile and the automobile driven by the defendant Harry Crede, Jr., after stopping shortly behind the third automobile was pushed or knocked into or against it by another automobile following the automobile driven by the defendant Harry Crede, Jr. The automobile which struck the automobile driven by the defendant Harry Crede, Jr., inflicted and sustained no damage and immediately left the scene of the collisions. As a result of the collisions of the other four automobiles, they became hooked or fastened together and remained for some time in...