Jackson v. Cockill

• Citation: 149 W.Va. 78,138 S.E.2d 710
• Decision Date: 17 November 1964
• Docket Number: No. 12323,12323
• Court: Supreme Court of West Virginia
• Parties: M. L. JACKSON, Administrator of the Estate of Spurgeon Ralph Hamlette, etc. v. Harry COCKILL.

Page 710

138 S.E.2d 710

149 W.Va. 78

M. L. JACKSON, Administrator of the Estate of Spurgeon Ralph Hamlette, etc. v. Harry COCKILL.

No. 12323.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 8, 1964.

Decided Nov. 17, 1964.

Syllabus by the Court

1. It is the duty of a pedestrian crossing a highway or street to use his eyes effectively to protect himself against impending danger from vehicles, and if he does not do so when he has the opportunity so to do he will be guilty of contributory negligence as a matter of law.

2. Recovery of funeral or burial expenses in a wrongful death action is now specifically prohibited in West Virginia by virtue of an amendment to Code, 55-7-6, in 1961.

3. Where there was no evidence to indicate that a distributee of proceeds of a wrongful death action knew of the conduct of a decedent which would tend to lessen distributee's sorrow over the death of such deceased person evidence of such conduct of the deceased person was properly refused by the trial court.

4. The burden of proving contributory negligence rests on the defendant, but the jury may look to all of the evidence offered by both the plaintiff and the defendant in determining whether or not the plaintiff's decedent is guilty of contributory nelgligence.

5. A pedestrian who at night could have observed the lights of an approaching automobile for about 1000 feet had he looked effectively and who walks across a main highway with his head down and arrives at the right hand lane at approximately the same time as an approaching vehicle is guilty of contributory negligence as a matter of law when struck and killed by such vehicle driven by a motorist who was looking to the right and failed to observe the pedestrian until the second of impact.

Hudgins & Coulling, L. R. Coulling, Jr., Bluefield, Barley & Goode, Grover C. Goode, Welch, for appellant.

Merrell I. Budnick, Northfork, W. H. Ballard, II, C. Thomas Seay, Welch, for appellee.

BERRY, Judge:

This action for wrongful death was instituted in the Circuit Court of McDowell County by the plaintiff, M. L. Jackson as Administrator of the Estate of Spurgeon Ralph Hamlette, also known as Spurgeon Ralph Hancock, deceased, against the defendant, Harry Cockill. When the complaint was filed instituting this action it also contained as part 'B' an action by the plaintiff as Administrator of the Estate of the deceased for pecuniary damages on behalf of the estate of the deceased consisting of hospital and medical expenses and funderal expenses in the amount of $2176.97, but when the case was called for trial, the trial court, apparently on its own motion, dismissed the action for pecuniary damages which action and ruling was objected to by the plaintiff. Upon motion of the plaintiff, which was granted by the trial court, the action for wrongful death was amended to show that in addition to Laura Hancock, alleged in the original complaint as a maternal great aunt and sole heir and next of kin to the decedent George Hamlette, Thelma Hamlette and Bessie Hamlette were also distributees of the decedent. During the trial funeral expenses in the amount of $741.14, for which one of the alleged distributees was liable, was allowed to be introduced into evidence and considered by the jury in connection with the awarding of damages to the plaintiff. The jury returned a verdict in favor of the plaintiff in the amount of $7741.14 which was separated into two findings by the jury, one in favor of the plaintiff for $7000.00 'damages' and one in favor of the plaintiff for $741.14 'pecuniary damages', after which judgment was entered by the trial court upon the jury's verdict in the amount of $7741.14. The motion to set aside the verdict of the jury and judgment entered thereon was overruled by the trial court and a final order was entered on July 6, 1963. Upon application to this Court an appeal and supersedeas was granted on March 23, 1964 and the case was submitted for decision of this Court on Arguments and briefs at the September Regular Term, 1964, of this Court.

The action arose out of an automobile accident which occurred in the town of Keystone, McDowell County, West Virginia, on U.S. Route 52 on January 17, 1962 at about 6:25 p. m. when the plaintiff's decedent was fatally injured when struck by an automobile owned and operated by the defendant. The plaintiff's decedent was a negro and was wearing dark clothes at the time of the accident. He was attempting to cross the street or highway, which was 30 feet wide and consisted of three ten foot lanes. He was carrying several bottles of 7-up, a soft drink, just purchased at a small market known as 'Steve's Market', which is located on the south side of the street The street or highway where the accident occurred is straight for over 1000 feet in an easterly direction toward Northfork, West Virginia, where the defendant had eaten dinner at his customary restaurant. The street lights were on at the time of the accident as were the headlights of defendant's automobile. The defendant was driving in a westerly direction in the right hand or northern lane. There were no other vehicles approaching from the opposite direction and the defendant stated he as driving about 25 miles per hour at the time of the accident and was on his way home to watch television or to read. He testified he was looking to his right in order to ascertain whether or not anyone was coming out into the highway from the intersection to Burke's Addition, that he did not see the plaintiff's decedent until he was two or four feet from him, at which time the decedent's head was down and he walked into the left front of his automibile; that he applied his brakes and stopped his automobile as soon as possible but the decedent was knocked upon the car, denting the hood and then thrown forward. It appears that the plaintiff's decedent had crossed two of the ten foot lanes and with his head down was walking into the third lane in which the defendant's car was being driven at which time he was struck by the left front of defendant's vehicle. The left front part of the hood of defendant's automobile was dented when the plaintiff's decedent came in contact with the automobile and although the defendant testified that decedent 'slipped along the road' after being hit and that he stopped his car within 40 to 50 feet after the accident and that the defendant was then six to eight feet in front of the car, other witnesses testified that the plaintiff's decedent was lying some 50 to 60 feet in front of the automibile after it had been stopped. Michael Colo, the eleven year old son of Steve Colo the owner of 'Steve's Market' was in front of his father's store at the time of the accident. This witness stated that he did not know whether the plaintiff's decedent looked in either direction before he started across the street, but that it looked like he was looking down at the time he crossed the street and was struck by defendant's automobile; that he thought he was going to get hit and so told his father. He further stated that '* * * it seemed like he was taking high steps and he walked right into the left side of the car and it knocked him into the air * * *'.

Ernest Woody, Jr., another eye witness to this accident, stated that he believed the plaintiff's decedent looked up and down but that he didn't know whether he did or not and that he saw the defendant's automobile approaching from the right and the plaintiff's decedent walked out into the street, that the defendant applied his brakes but that he, Woody, turned his head before the accident occurred. Woody further stated it seemed to him that the plaintiff's decedent had been drinking but that he did not know 'for sure', although he smelled whiskey on the breath of plaintiff's decedent.

The Chief of Police of Keystone, James Oliver, arrived on the scene of the accident soon after it occurred and before the defendant's automobile had been moved. This witness stated that he observed skid marks behind defendant's automobile but he did not measure them at that time, that although plaintiff's decedent's body had been removed from the scene when he arrived he observed blood spots on the road where the body had been and that these marks were approximately 50 feet from the defendant's automobile and in front of it. A Member of the Department of Public Safety, Trooper J. R. Harsh, arrived on the scene of the accident about three hours after it occurred and in company with Chief of Police Oliver measured skid marks behind defendant's automobile. Trooper Harsh stated that they measured 91 feet and 11 inches. Objection was made by the defendant to the testimony of the State Trooper with regard to the skid marks because the automobile had been moved and such testimony was hearsay. However, the skid marks were pointed out to him by Oliver who saw them before defendant's automobile had been moved. The objection was overruled by the trial court.

The trial court refused to allow the defendant to introduce evidence by Chief of Police Oliver that the decedent had been arrested and placed in jail on numerous occasions for being drunk, that he slept in alleys during the summer and that he had been drinking about 1 o'clock p. m. on the day of the accident. However, the trial court allowed evidence to be introduced over the objection of the defendant to the effect that Laura Hancock, 85 years of age, who, as aunt, had reared the plaintiff's decedent and was his nearest of kin, was real nervous, crying and 'going on' about her 'son' and almost collapsed when advised of his death.

The plaintiff's decedent was taken to the Stevens Clinic in Welch after the accident where he remained in an unconscious condition until February 26, 1962 at which time he expired.

The errors relied on for reversal by the defendant in this case are: (1) The refusal to direct a verdict for the defendant; (2) allowing the funeral bill to be introduced into...