Jenkins v. Chatterton

Decision Date10 December 1957
Docket NumberNo. 10879,10879
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.
CourtWest Virginia Supreme Court

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 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 .

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 .

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.

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 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 Ford automobile driven by the defendant, Kenneth R. Chatterton, and that Zetta Blanch Jenkins was a passenger in the Ford car; that on the right hand side of the highway at that place are Morgan's Tourist Cabins, which were lit up, a service station on the left with lights on it, and a blinking traffic signal light ahead which could be seen at least a half a mile in an approach to it; that in the road ahead of him was a police car with a caution light 'going around and around'; that the highway is fairly straight behind the trailer, although 'sidling a little bit, but not too much though'; that he had been driving a truck for fifteen years and an automobile for a still longer period of time, and that, in his opinion, it was easier for one to stop an automobile at the speed he was going than it was to stop his truck; and that there were skid marks left by the Chatterton car on the road behind the place of collision.

Dana Orndorff, a member of the West Virginia Department of Public Safety, testified: that the defendant's car skidded a distance of seventy-five feet before colliding with the semi-trailer, and that he talked with the defendant at the hospital and could smell the presence of alcohol on defendant's breath, and that upon submission by defendant to a blood test, it was determined that there was a substantial alcoholic content in his blood; and that his examination of the position of the truck and trailer on the highway showed that the left wheels were on the line dividing the two west bound traffic lanes, and the defendant's car was 'sort of in a forty-five degree angle' on the highway with the right side of the car in the rear of the trailer.

E. F. Porter, a witness for plaintiff, testified: that he was driving east from Huntington at the time of the collision of defendant's car with the semi-trailer and that the condition of the road was 'slick, plenty slick'; that when he saw someone with a flashlight ahead of him, he passed him and when he looked for an automobile and didn't see any he 'hit' his brakes and his car went into a spin and 'did about four loops' and 'up in somebody's driveway backwards at about a forty-five degree...

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