Henthorn v. Long

• Decision Date: 04 December 1961
• Docket Number: No. 12103,12103
• Citation: 122 S.E.2d 186,146 W.Va. 636
• Parties: Ara Virginia HENTHORN, Admrx., Etc., v. Carl LONG.
• Court: West Virginia Supreme Court

Page 186

122 S.E.2d 186

146 W.Va. 636

Ara Virginia HENTHORN, Admrx., Etc., v. Carl LONG.

No. 12103.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1961.

Decided Oct. 24, 1961.

Rehearing Denied Dec. 4, 1961.

Syllabus by the Court

1. In an action for personal injuries or for wrongful death arising from the operation of a motor vehicle on a public highway, a defendant will not be permitted to rely on the sudden emergency doctrine as a defense where his own action has created, in whole or in part, the situation which is alleged by him to constitute the sudden emergency.

2. An instruction which is not sustained by evidence should not be given.

3. In a wrongful death action resulting from the operation of a motor vehicle upon a public highway, the plaintiff is entitled to have the court give an instruction setting forth the duty of the defendant to have his motor vehicle equipped with brakes in accordance with the provisions of that portion of Chapter 129, Acts of the Legislature, Regular Session, 1951, appearing in Code, 1931, as amended, as Chapter 17C, Article 15, Section 31(b) and (c), even though the evidence fails to disclose that the highway at the place in question was 'a smooth, level road.'

4. 'Jurors may be questioned on their voir dire not only for the purpose of showing cause for a challenge, but also, within reasonable limits, to elicit such facts as enable the parties to exercise intelligently their right of peremptory challenge. The nature and extent of the examination, however, should be left largely to the discretion of the trial court.' State v. Stonestreet, Point 1 Syllabus, 112 W.Va. 668, .

5. The granting or refusal of a request by the plaintiff for a more particular statement of the nature of the defense rests in the sound discretion of the trial court; and the court's refusal to grant such request will not be held to be error unless, in the circumstances of the case, it is clear that such refusal operated to the prejudice of the rights of the plaintiff and amounted to an abuse of sound discretion.

James W. Pyles, Jack Hawkins, Pros. Atty., New Martinsville, for plaintiff in error.

Snyder & Hassing, New Martinsville, for defendant in error.

CALHOUN, Judge.

This case involves a wrongful death action growing out of a motor vehicle collision resulting in a verdict for the defendant, which the trial court declined to set aside. The basic defense was predicated on the sudden emergency doctrine.

On the morning of August 11, 1958, Arthur William Henthorn and Howard Eugene Miller were proceeding in a northwesterly direction on State Route No. 20 and 7 toward New Martinsville in Wetzel County in a 1951 model Chevrolet automobile, owned and then being operated by Henthorn. At a point referred to in the testimony as the 'twin bridges', Henthorn stopped his automobile near the eastern end of a narrow concrete bridge and on his right side of the highway, in order to permit an oncoming pickup truck, and perhaps one or more other vehicles following the pickup truck, to cross the narrow bridge from the opposite direction. While the automobile was stationary at that place, it was struck from the rear by a 1956 model 2-ton Ford truck then owned and being operated by Carl Long. As a consequence of that collision, the automobile was rammed into the right side of the concrete bridge on the eastern end thereof with such force and violence that the automobile was demolished, Henthorn, the driver, was killed, and Miller, the passenger in the automobile suffered a broken back and other injuries. In this wrongful death action consequently instituted in the Circuit Court of Wetzel County by Ar Virginia Henthorn, as administratrix of the estate of her deceased husband, Arthur William Henthorn, against Carl Long, a jury returned a verdict in favor of the defendant. From a judgment entered on such verdict by the trial court on May 27, 1960, the administratrix prosecutes this writ of error. The plaintiff has filed a motion to reverse, pursuant to leave granted by this Court on May 8, 1961. A consideration of the several assignments of error urged in behalf of the plaintiff necessitates a rather extended summary of the pertinent facts and circumstances disclosed by the testimony.

The collision occurred about 7:45 a. m., while Henthorn and Miller were proceeding from their respective homes in Wetzel County with an intention to go to Weirton, West Virginia. The impact caused Henthorn to be thrown forward against the steering wheel of his automobile, causing it horn 'to strick and blow'. His resultant death apparently was instantaneous.

From photographs exhibited and from the testimony of witnesses it appears that eastward from the point of impact, the direction from which both vehicles had proceeded, there is a slight and gradual ascent extending for perhaps as much as 1,000 feet. The weather was clear and dry. At a point 475 feet eastward from the bridge, there was a highway marker bearing the words 'Narrow Bridge'. The paved portion of the highway at the eastern edge of the bridge was 17 feet, 6 inches in width. The defendant was familiar with the highway in the area in question, having traveled over it frequently prior to the date of the accident.

Arthur William Henthorn owned and operated a small farm near Piney in Wetzel County, and Howard Eugene Miller lived with his grandmother on an adjoining farm. Miller testified that during the trip from Piney to the scene of the accident, Henthorn operated the automobile at a speed of about 40 to 45 miles an hour; that at Porters Falls, a distance of ten or eleven miles eastward from the twin bridges, he first noticed the Long truck following at a distance of about 500 feet in the rear of the automobile; that he observed the truck three or four times thereafter; that he last observed the truck at almost the instant it struck the automobile and prior to that time he last observed the truck about one mile eastward from the scene of the accident at a place of business known as the 'Cabbage Patch'; that Henthorn's automobile was then traveling approximately 45 miles an hour; that the truck was 'keeping about the same distance' or 'holding about the same distance' from the automobile each time he observed it prior to the moment of collision; that Henthorn gave an appropriate arm signal and stopped his automobile on the right side of the highway at a point near the third guard rail post eastward from the eastern end of the bridge; that the Henthorn automobile was in its stationary position about twelve seconds prior to the time it was struck from the rear by the truck; and that he had 'no idea' of the speed of the truck when he last saw it immediately preceding the impact.

Riley Beegle, a constable of Magnolia District of Wetzel County, a witness for the plaintiff, testified that he went to the scene of the accident at the suggestion or request of the chief of police of the City of New Martinsville; that he arrived at the scene about the time the ambulance was leaving with the two injured persons; and that one of such persons 'looked like he was dead.' Beegle testified further that at that time and place Carl Long, the defendant, told him 'it was his fault, that he was on his way to New Martinsville to get his brakes fixed'; and that he said 'he was sorry because these boys were both friends of his, and he was sorry that happened, and he said they came down the hill there, that he pumped his brakes on the truck, and he didn't have brakes'; that he was about three hundred feet, apparently from the Henthorn automobile, when he first undertook to apply his brakes; and that he stated further that he 'found out he didn't have any brake, and he reached across to an emergency brake, and he hit a button there which throwed it into neutral'. Constable Beegle testified that there was on the floor of the cab of the truck a can lying on its side, from which was flowing or spilling a liquid which 'looked like, smelled like brake fluid'. The witness denied that Long stated that he was going to New Martinsville to have his brakes merely 'tightened' or 'adjusted' or to have his battery checked, bur rather that Long stated he was going to New Martinsville to have his brakes 'fixed'. At the request of Sheriff S. W. Westerman, Beegle took the defendant to New Martinsville for questioning.

S. W. Westerman, Sheriff of Wetzel County, arrived at the scene of the accident after Long's truck had been moved westward across the bridge and parked in front of a nearby store. As a witness for the plaintiff, he testified that the 'Chevrolet was completely smashed in. It was shoved clear to the front. The Ford truck was damaged on the right side. The better part of the damage was on the right side of the front.' This testimony relative to the nature of damage to the two vehicles is confirmed by photographs which are made exhibits. Sheriff Westerman did not talk with the defendant at the scene of the accident, but he did question him later in New Martinsville. In relation thereto the sheriff testified: 'Well, he told me that he was--he left Reader, and he had about a half a brake * * *. He told that to me, that he had about a half a brake, and he was starting to New Martinsville to have his brakes repaired. He came to within three hundred feet of the bridge where the accident occurred, and he pumped on his brake, and his brake wouldn't work. He pumped several times and it wouldn't work. He grabbed for his emergency, and by grabbing for his emergency, he hit some kind of a button--I don't know what it is--and threw it into neutral, thereby the emergency brake wouldn't work at all.' The sheriff testified further that he caused the truck to be examined later that day on the premises of Bridgeman Motors in New Martinsville by Carl Reed, an automotive mechanic, and that such examination 'revealed very little brake fluid in the cylinders.'

Carl Reed, an automotive mechanic...