Jenkins v. Chatterton, No. 10879

CourtSupreme Court of West Virginia
Writing for the CourtDUCKER
Citation143 W.Va. 250,100 S.E.2d 808
PartiesWillie Robert JENKINS, Administrator of the Estate of Zetta Blanch Jenkins, Deceased. v. Kenneth R. CHATTERTON.
Docket NumberNo. 10879
Decision Date10 December 1957

Page 808

100 S.E.2d 808
143 W.Va. 250
Willie Robert JENKINS, Administrator of the Estate of Zetta
Blanch Jenkins, Deceased.
v.
Kenneth R. CHATTERTON.
No. 10879.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 18, 1957.
Decided Dec. 10, 1957.

Syllabus by the Court

1. 'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged [143 W.Va. 251] in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.' Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [163 S.E. 767].

2. 'A motion to exclude all the plaintiff's evidence and direct a verdict for the defendant should be refused when the plaintiff's evidence prima facie entitles it to recover.' Point 2, syllabus, Baltimore & Ohio Railroad Co. v. Dellslow Coal Co., 98 W.Va. 194 [127 S.E. 43].

Baker & Lee, David M. Baker, Edward V. Lee, Robert L. Slack, Huntington, for plaintiff in error.

Campbell, McNeer & Woods, C. F. Bagley, Jr., Huntington, C. W. Ferguson, III, Wayne, for defendant in error.

DUCKER, Judge.

Page 809

The plaintiff, Willie Robert Jenkins as Administrator of the estate of Zetta Blanch Jenkins, deceased, brought this action of trespass on the case under the death by wrongful act statute against Kenneth R. Chatterton, in the Circuit Court of Wayne County, and upon the conclusion of the plaintiff's evidence, the court sustained a motion of the defendant to strike the evidence of the plaintiff and to direct a verdict for the defendant, whereupon, the court entered judgment for the defendant. It is to the correctness of this action of the court that plaintiff assigns error and prosecutes this writ of error. There being, of course, no testimony in behalf of the [143 W.Va. 252] defendant, except such as may be favorable from plaintiff's witnesses, the principal facts, with little to no contradiction, are as follows:

Zetta Blanch Jenkins and one William E. Balcomb, who were passengers in an automobile driven by the defendant, died immediately when the defendant drove the automobile into the rear end of a semi-trailer truck at about 2:20 A.M. on December 10, 1955, on U. S. Route No. 60, a short distance east of the city limits of the City of Huntington, West Virginia.

Howard S. Gadd, an employee of Merchants Dispatch, testified: that he drove a 1950 Federal Truck, with a thirty-two foot long semi-trailer attached, on U. S. Route No. 60 from Charleston, West Virginia, on December 10, 1955, leaving there about 12:30 A.M., to a point on said route about one-quarter of a mile east of the Huntington city limits, where he was stopped by some unknown person waving a flashlight to warn him of an automobile accident which had just previously occurred on said highway before Gadd reached that point; that from Barboursville, West Virginia, to the place where he was stopped Route 60 was visibly covered with a 'solid sheet of ice', and that because of such condition of the road he had operated his truck and semi-trailer at a speed of twenty-five miles per hour until he was flagged down, and that at such speed and putting his truck in gear and slowing using his brakes which were both air and traction but not operatable simultaneously, he had no trouble in stopping in the outer right-hand lane of the highway which was four lane from Barboursville to a point west of where he stopped; that upon stopping he set his brakes, left his headlights on, as well as the seven or eight lights on the back and of the trailer; that in about a minute and a half after stopping he obtained a fusee from a compartment in the cab of his truck and started to alight to set out the fusee to warn traffic that might be approaching and 'by that time the man drove into the back of my truck'; that the car driven into the back of his semi-trailer truck was a 1955...

To continue reading

Request your trial
38 practice notes
  • Reilley v. Byard, No. 12081
    • United States
    • Supreme Court of West Virginia
    • May 2, 1961
    ...139 W.Va. 711, 730-731, 81 S.E.2d 78, 88; Belcher v. Norfolk & W. Ry. Co., 140 W.Va. 848, 853, 87 S.E.2d 616, 620; Jenkins v. Chatterton, 143 W.Va. 250, pt. 1 syl., 100 S.E.2d For the reasons stated herein the judgment of the Circuit Court of Marshall County is reversed, the verdict directe......
  • Gardner v. CSX Transp., Inc., No. 24002.
    • United States
    • Supreme Court of West Virginia
    • November 25, 1997
    ...Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [, 163 S.E. 767 (1932)].'" Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 [, 100 S.E.2d 808] (1957).' Syl. Pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 We further established, in syllabus point 3 of Brannon, supra......
  • JWCF, LP v. Farruggia, No. 12–0389.
    • United States
    • Supreme Court of West Virginia
    • December 27, 2013
    ...Syllabus, Nichols v. Raleigh–Wyoming Coal Co., 112 W.Va. 85[, 163 S.E. 767 (1932) ].” Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250[, 100 S.E.2d 808](1957).' Syl. Pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).” Syl. Pt. 2, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d......
  • Totten v. Adongay, No. 16432
    • United States
    • Supreme Court of West Virginia
    • October 30, 1985
    ...119 S.E.2d 650 (1961); Syl. pt. 3, Costello v. City of Wheeling, 145 W.Va. 455, 117 S.E.2d 513 (1960); Syl. pt. 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957); Syl. pt. 1, Reese v. Lowry, 140 W.Va. 772, 86 S.E.2d 381 (1955), overruled on other grounds, 163 W.Va. 332, 256 S.E......
  • Request a trial to view additional results
38 cases
  • Reilley v. Byard, No. 12081
    • United States
    • Supreme Court of West Virginia
    • May 2, 1961
    ...139 W.Va. 711, 730-731, 81 S.E.2d 78, 88; Belcher v. Norfolk & W. Ry. Co., 140 W.Va. 848, 853, 87 S.E.2d 616, 620; Jenkins v. Chatterton, 143 W.Va. 250, pt. 1 syl., 100 S.E.2d For the reasons stated herein the judgment of the Circuit Court of Marshall County is reversed, the verdict directe......
  • Gardner v. CSX Transp., Inc., No. 24002.
    • United States
    • Supreme Court of West Virginia
    • November 25, 1997
    ...Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [, 163 S.E. 767 (1932)].'" Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 [, 100 S.E.2d 808] (1957).' Syl. Pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 We further established, in syllabus point 3 of Brannon, supra......
  • JWCF, LP v. Farruggia, No. 12–0389.
    • United States
    • Supreme Court of West Virginia
    • December 27, 2013
    ...Syllabus, Nichols v. Raleigh–Wyoming Coal Co., 112 W.Va. 85[, 163 S.E. 767 (1932) ].” Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250[, 100 S.E.2d 808](1957).' Syl. Pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).” Syl. Pt. 2, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d......
  • Totten v. Adongay, No. 16432
    • United States
    • Supreme Court of West Virginia
    • October 30, 1985
    ...119 S.E.2d 650 (1961); Syl. pt. 3, Costello v. City of Wheeling, 145 W.Va. 455, 117 S.E.2d 513 (1960); Syl. pt. 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957); Syl. pt. 1, Reese v. Lowry, 140 W.Va. 772, 86 S.E.2d 381 (1955), overruled on other grounds, 163 W.Va. 332, 256 S.E......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT