Hutcherson v. Slate

• Decision Date: 14 February 1928
• Docket Number: ( No. 6052-6052A)
• Citation: 105 W.Va. 184
• Court: West Virginia Supreme Court
• Parties: R. L. Hutcherson, Admr. v. G. L. Slate and Appalachian Power Co. and Willie Hutcherson, Infant etc., v. G. L. Slate and Appalachian Power Co.

105 W.Va. 184

R. L. Hutcherson, Admr.

v.G. L. Slate andAppalachian Power Co.andWillie Hutcherson, Infant etc.,

v.G. L. Slate andAppalachian Power Co.

(Nos. 6052-6052A)

Supreme Court of Appeals of West Virginia.

Submitted February 7, 1928.

Decided February 14, 1928.

1. Negligencfj Where Concurrent Negligence of Two Persons Causes Injury, Both Are Liable; Regardless of Whether

Negligence of One is Greater or Precedes Other.

Where the concurrent negligence of two persons causes an injury, both are liable. It is immaterial in such case that the negligence of one is greater than that of the other, or that his negligence precedes or follows that of the other, (p. 188.)

(Negligence, 29 Cyc. p. 488.)

2. Appeal and Error Where Two* Joint Defendants Are Each Liable to Contribuion for Trespass in Case of Judgment, Verdict for One and Against Other, Following Erroneous Instruction in Favor of First, May be Assailed by Second Code, c. 136, § 8).

Where A and B are impleaded jointly for a trespass, and each is liable to contribution in case of judgment, a verdict in favor of A and against B following an erroneous instruction in favor of A may be assailed by B as prejudicial to him. (p. 190.)

(Appeal and Error, 4 C. J. § 2605; Contribution, 13 C. J. § 21.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, McDowell County.

Action by R. L. Hutcherson, administrator of Mrs, Dorcas Hutcherson, deceased, against G. L. Slate and the Appalachian Power Company, and action by Willie Hutcherson, an infant, against G. L. Slate and the Appalachian Power Company. Judgment in each case for plaintiff against the second named defendant and exonerating the first named defendant, and the second named defendant brings error. Cases heard together on appeal.

Reversed as to Slate; affirmed as to Appalachian Power Co. Banders, Crockett, Fox & Sanders, for plaintiff in error. Joseph M. Crockett, for Hutcherson. Strother, Sale, Curd & Tucker, for Slate.

Hatcher, Judge:

The above cases grew out of the same automobile accident and were by consent submitted to the same jury upon the same evidence. In each case the jury exonerated defendant Slate, but found a verdict against the defendant Appalachian Power Company.

The errors alleged here relate to the sufficiency of the evidence to sustain the verdict, to the quantum of the recovery by plaintiff Willie Hutcherson, and to the giving and refusal of instructions.

Mrs. Dorcas Hutcherson was killed and Willie Hutcherson injured in the wreck of an automobile owned by defendant Slate and driven by his son, Claude. The occurrence was meagerly described by Claude in this way: "Well, I was on the road between Bramwell and Bluefield, and going down a kind of a hill, on a long stretch and made a little curve, and I saw a, truck below, coming, and I blew my horn, and I just kept on going, and he did too, and he was holding the middle of the road. I saw him first on the bridge, and he didn't seem to go either way, and after I saw he wasn't going to get out I cut my car out and got over the hill, and I tried to cut back into the road, and when the car did come back it cut across the road and hit this slab and turned over." He further stated that the speed of his car was about 25 miles an hour when he saw the truck; that it was about half that rate when he passed it, and about ten miles an hour when he '' cut back" into the road. The road at the place of the accident was hard surfaced to a width of twelve feet. On either side of the hard surface were shoulders, three feet in extent. From these shoulders the road sloped gradually for about four feet into a ditch. The hill referred to has a grade of 5.7%. The bridge is of concrete and fourteen feet wide. The truck was-owned by the defendant Company. According to the evidence of the plaintiffs, the left wdieels of the truck were three feet to the left of the center of the road while the automobiles were passing; Claude saw the truck when he was about 300 feet from the bridge; he prilled out to the right at 88 feet from the bridge until the right wheels of his car were from three to four feet off the hard surface and in the soft earth at the top of the ditch, his left wheels remaining on the hard surface; his car proceeded in this relation to the road for something like seventy feet during which time he passed the truck, and upon returning to the hard surface (at about sixteen feet from the bridge) his automobile ran across the road, struck the left wall of the bridge, turned completely over the side of the bridge and fell upside down into the ravine below. Claude admitted that he did not apply his brakes as he passed the truck, but that he drifted by with his ignition cut off, and his car in gear, and that he did not apply his brakes or turn on his ignition between passing the truck aiid striking the bridge.

The driver of the truck testified that he had his machine on the right of the road at the time Claude passed him. He was supported in this by other witnesses. As the verdict of the jury is for the plaintiffs, we must regard the verdict from the evidence which favors them. From that evidence the Slate car would not have been forced into the position which led up to the accident if the truck had yielded half of the road. Its failure to do so was undoubtedly a contributing cause of the accident, and as such renders the Company responsible in damages. Thompson Neg. Sec, 75; Day v. Coal Co., 60 W. Va. 27; Johnson v. Chapman, 43 W. Va. 639. The evidence therefore supports the verdicts against the Company.

Willie Hutcherson was injured in her right shoulder, her left side and her left knee. No bones were broken, but her shoulder was badly bruised, her knee was gashed, and her left side bruised to the extent that she suffered pain from it for several months. Her shoulder and knee pained her for several weeks. These injuries were confirmed by her family physician. On this evidence, which is undisputed, the jury gave her $2,000.00 as damages. It has been oft repeated that the law furnishes no measure or scale by which to estimate pain, and that a verdict of a jury thereon will not be

disturbed unless so great or so small as to indicate bias or prejudice. Landau v. Farr, 104 W. Va. 445, 140 S. E. 141, and cases there cited. What we said in that case is equally applicable here. "The trial court heard the evidence in this case, and observed the conduct and bearing of the witnesses. Its refusal to disturb the verdict is entitled to great weight, 4 C. J. p. 835, sec. 2818. Before we could set aside this verdict, we would have to hold, not only that the jury was influenced by improper motives, but that the trial court abused its discretion in sustaining the verdict. Under the authorities above cited, the evidence does not warrant such a holding."

The brief of the Company complains of the giving of instruction No. 4 on behalf of defendant Slate and of the refusal of No. 5" offered by the Company. In its motion to set aside the verdict, the Company enumerated certain instructions given by the court as erroneous, but did not specify the Slate instruction. Counsel for Slate contend that under Clark v. Kelly, 101 W. Va. 651, and other decisions of this Court, the Company is deemed to have waived its objection to that instruction. We have in some cases reviewed a particular instruction when the only ground assigned in the motion below was that the verdict was contrary to the evidence. But where specific objection to certain instructions is made and references to the others, is omitted, as in this case, we think the rule invoked by counsel should ordinarily apply to those omitted.

Instruction No. 5 of the Company which was refused is as follows: '' The Court instructs the jury that even...