Hollen v. Linger, No. 12556

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation151 W.Va. 255,151 S.E.2d 330
PartiesRichard Lee HOLLEN, an infant, etc., et al. v. Mildred Rexroad LINGER.
Docket NumberNo. 12556
Decision Date29 November 1966

Page 330

151 S.E.2d 330
151 W.Va. 255
Richard Lee HOLLEN, an infant, etc., et al.
v.
Mildred Rexroad LINGER.
No. 12556.
Supreme Court of Appeals of West Virginia.
Submitted Oct. 4, 1966.
Decided Nov. 29, 1966.

Page 331

Syllabus by the Court

1. Instructions must be based upon the evidence and an instruction which is not sustained by evidence should not be given.

2. An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.

3. A verdict of a jury which is without sufficient evidence to support it or is plainly against the clear preponderance of conflicting evidence will, upon proper motion, be set aside by the court.

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.

[151 W.Va. 256] 5. 'Where the evidence given on behalf of defendant is so clearly insufficient to support a verdict for him that such verdict, if returned by the jury, must be set aside, and the evidence in support of plaintiff's claim is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff.' Point 4, syllabus, Vaccaro Brothers and Company v. Farris, 92 W.Va. 655 (115 S.E. 830).

Coleman & Wallace, James H. Coleman, Jr., Robert J. Wallace, Buckhannon, for appellants.

Hymes & Coonts, Myron B. Hymes, Buckhannon, Steptoe & Johnson, H. G. Underwood, Clarksburg, for appellee.

HAYMOND, Judge:

In this civil action instituted in the Circuit Court of Upshur County in June 1964, the plaintiffs, Richard Lee Hollen, an infant who sues by James Sterling Hollen, his next friend, and James Sterling Hollen, seek a recovery from the defendant, Mildred Rexroad Linger, for personal injuries to the infant plaintiff Richard Lee Hollen, alleged to have resulted from the negligence of the defendant, and for hospital, medical, doctor and other expenses, in the treatment of the injuries of the infant plaintiff, incurred by the plaintiff James Sterling Hollen.

Upon the trial of the case the jury returned a verdict in favor of the defendant and submitted its written recommendation 'that, in fairness to all concerned, the

Page 332

defendant should share in the payment of the medical expenses incurred to date as a result of this accident.' Such recommendation must be considered as [151 W.Va. 257] mere surplusage and, not being a part of the verdict, is of no force or effect. On May 11, 1965, the court entered judgment upon the verdict and awarded costs in favor of the defendant. By its final judgment rendered June 17, 1965, the court refused to set aside the verdict of the jury and to grant the plaintiffs a new trial and from this judgment this appeal was granted by this Court on February 28, 1966, upon the application of the plaintiffs.

By stipulation of the parties it was agreed that the defendant, the mother of John E. Rexroad, then fourteen years of age, was the owner of a Buick automobile on June 8, 1962, on which date John E. Rexroad, with the permission and consent of the defendant, drove the automobile from the garage in which it was normally stored to a nearby driveway on the property of the defendant where it was washed, after which he drove it from the driveway into the garage where the infant plaintiff, then fourteen years of age, was struck and injured by the automobile operated by John E. Rexroad; and that the plaintiff James Sterling Hollen, the father of Richard Lee Hollen, has incurred medical, hospital, doctor and other expenses in the treatment of the injuries sustained by the infant plaintiff Richard Lee Hollen.

There is little, if any, dispute with respect to the material facts disclosed by the evidence.

The infant plaintiff and Neal Zinn, also fourteen years of age, friends and high school mates of John E. Rexroad, son of the defendant, at the invitation of John E. Rexroad and with the consent of the defendant, spent the night of June 7, 1962 at the home of the defendant. The defendant had requested her son to wash the Buick automobile and in the early afternoon of June 8, 1962, John E. Rexroad, with the assistance of the infant plaintiff and Zinn, washed the automobile while it was located on the driveway outside the two stall garage near the dwelling and on [151 W.Va. 258] the premises of the defendant. In the process of washing the automobile the tennis shoes or sneakers, the soles of which were smooth, worn by John E. Rexroad, became wet and after the automobile was washed he drove it into the left stall or space of the garage at a slow rate of speed. At that time Zinn was sitting in the right side of the front seat and was directing the driver to avoid striking some cans on the right side of the automobile, and while the automobile was proceeding slowly into the left section of the garage the infant plaintiff came from the dwelling into the garage and stood in front of the automobile to direct the driver to avoid striking the left side of the garage. When the front end of the automobile was several feet inside the garage Zinn and the infant plaintiff called to the driver to stop the automobile because its right side struck a trash can in the garage. At that time and when the infant plaintiff was six or seven feet in front of the automobile the driver, who had asked the infant plaintiff to guide him, put his foot on the brake from which it slipped and came upon the accelerator of the automobile, increased its speed, and caused it suddenly to lunge forward and strike the infant plaintiff and push him against the rear wall of the garage which was moved several inches from its position. The automobile struck the infant plaintiff between his knees and his ankles and injured him severely. He placed his hands on the front of the automobile, the motor of which had stalled, and the driver, after starting the motor, backed the automobile away from the infant plaintiff who then fell to the floor of the garage, after which he received assistance and was taken to a hospital. John E. Rexroad had previously driven the automobile in and out of the garage and upon public highways on numerous occasions and felt that he was a competent driver and the defendant also considered him to be competent to drive and wash the automobile, although because

Page 333

of his youth he was not a licensed automobile operator. In taking his place in front of the automobile to direct [151 W.Va. 259] the driver, the infant plaintiff thought that he was not in a position of danger and the driver of the automobile likewise thought that the infant plaintiff while in front of the automobile was not in a position of danger. When the automobile suddenly came toward the infant plaintiff he attempted to jump from in front of it but did not have time to do so and escape injury.

The plaintiffs assign as error the action of the circuit court (1) in giving Defendant's Instruction No. 5, relating to unavoidable accidents; (2) in giving Defendant's Instructions Nos. 1, 2 and 6, relating to contributory negligence; (3) in refusing to give Plaintiffs' Instruction No. 9, which would have directed a verdict in favor of the plaintiffs; (4) in refusing to give Plaintiffs' Instruction No. 10, which would have told the jury that as a matter of law the infant plaintiff was not guilty of any negligence; and (5) in refusing to sustain the motion of the plaintiffs to set aside the verdict and grant a new trial.

Defendant's Instruction No. 5, of which the plaintiffs complain, told the jury that unavoidable accidents may occur without negligence on the part of any party involved and that if the jury believed from the evidence that the plaintiff was injured as a result of an unavoidable accident without negligence on the part of the driver of the automobile the jury should return a verdict in favor of the defendant.

This Court considered the question of an unavoidable accident in Bolling v. Clay, 150 W.Va. 249, 144 S.E.2d 682, and in the opinion, among other quotations, used in part this quotation from 65 C.J.S., Negligence, Section 21: 'An unavoidable accident is one which occurs while all persons concerned are exercising ordinary care, that is, one which is not caused by the fault of any of the persons, and which occurs without the negligence of either party. If the accident producing the injury could have been prevented by either party by means suggested by common prudence or ordinary or reasonable care, or could not have [151 W.Va. 260] happened without negligence or contributory negligence, it is not deemed unavoidable.'

In 7 Am.Jur.2d, Automobiles and Highway Traffic, Section 350, the text contains this pertinent language: 'An unavoidable or inevitable accident is such an occurrence or happening as, under all attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned. In other words, where there is no evidence that the operator of the motor vehicle was negligent in any way, or that he could have anticipated the resulting accident, the accident is deemed to have been an unavoidable or...

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42 practice notes
  • Yates v. Mancari, No. 12753
    • United States
    • Supreme Court of West Virginia
    • 15 Julio 1969
    ...a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255, (151 S.E.2d [153 W.Va. 351] 6. 'It is reversible error to give an instruction which tends to mislead and confuse the jury.' Point 5, syllabus......
  • White v. Lock, No. 16401
    • United States
    • Supreme Court of West Virginia
    • 26 Junio 1985
    ...was evidence that sliding sideways while descending a slushy, snow-covered roadway could be reasonably anticipated. Hollen v. Linger, 151 W.Va. 255, 259-60, 151 S.E.2d 330, 333 (1966). VII The trial court gave two instructions, Plaintiffs' Instruction No. X and Defendant's Instruction No. 6......
  • Rodgers v. Rodgers, No. 19596
    • United States
    • Supreme Court of West Virginia
    • 13 Noviembre 1990
    ...a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255 [151 S.E.2d 330 (1966) ]." Syllabus Point 5, Yates v. Mancari, 153 W.Va. 350, 168 S.E.2d 746 19. "It is reversible error to give an instructio......
  • State v. Collins, No. 12854
    • United States
    • Supreme Court of West Virginia
    • 23 Febrero 1971
    ...be based upon the evidence and an instruction which is not sustained by evidence should not be given. Point 1 Syllabus, Hollen v. Linger, 151 W.Va. 255, 151 S.E.2d 330; Frye v. Norton, 148 W.Va. 500, 135 S.E.2d 603; Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726; Maynard v. [154 W.Va. 783] ......
  • Request a trial to view additional results
42 cases
  • Yates v. Mancari, No. 12753
    • United States
    • Supreme Court of West Virginia
    • 15 Julio 1969
    ...a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255, (151 S.E.2d [153 W.Va. 351] 6. 'It is reversible error to give an instruction which tends to mislead and confuse the jury.' Point 5, syllabus......
  • White v. Lock, No. 16401
    • United States
    • Supreme Court of West Virginia
    • 26 Junio 1985
    ...was evidence that sliding sideways while descending a slushy, snow-covered roadway could be reasonably anticipated. Hollen v. Linger, 151 W.Va. 255, 259-60, 151 S.E.2d 330, 333 (1966). VII The trial court gave two instructions, Plaintiffs' Instruction No. X and Defendant's Instruction No. 6......
  • Rodgers v. Rodgers, No. 19596
    • United States
    • Supreme Court of West Virginia
    • 13 Noviembre 1990
    ...a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255 [151 S.E.2d 330 (1966) ]." Syllabus Point 5, Yates v. Mancari, 153 W.Va. 350, 168 S.E.2d 746 19. "It is reversible error to give an instructio......
  • State v. Collins, No. 12854
    • United States
    • Supreme Court of West Virginia
    • 23 Febrero 1971
    ...be based upon the evidence and an instruction which is not sustained by evidence should not be given. Point 1 Syllabus, Hollen v. Linger, 151 W.Va. 255, 151 S.E.2d 330; Frye v. Norton, 148 W.Va. 500, 135 S.E.2d 603; Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726; Maynard v. [154 W.Va. 783] ......
  • Request a trial to view additional results

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