Jones v. Perrine

• Decision Date: 22 March 1985
• Docket Number: No. 16380,16380
• Citation: 331 S.E.2d 842,175 W.Va. 111
• Parties: Robert David JONES v. William H. PERRINE, Roles Transport Inc., dba City Cab, and Arby B. Smith.
• Court: West Virginia Supreme Court

Page 842

331 S.E.2d 842

175 W.Va. 111

Robert David JONES v. William H. PERRINE, Roles Transport Inc., dba City Cab, and Arby B. Smith.

No. 16380.

Supreme Court of Appeals of

West Virginia.

March 22, 1985.

Rehearing Denied June 11, 1985.

Syllabus by the Court

1. "Although a court is required to instruct or charge a jury on every important theory of claim or defense supported by the evidence of the case, the court is not bound thereby to charge the jury in the exact language proffered by a party's instruction. Within the constraints of fairly presenting all parties' conflicting theories, the court is authorized by Code 1931, 56-6-19 to deviate from the language of proffered instructions so as to effect an ordered and logically connected charge to the jury." Syl. pt. 2, Parker v. Knowlton Construction Co., 158 W.Va. 314, 210 S.E.2d 918 (1975).

2. "The admission of evidence merely cumulative is within the sound discretion of the trial court, and unless the court abuses such discretion, the admission or exclusion of such evidence will not constitute error." Syl. pt. 3, Elswick v. Charleston Transit Co., 128 W.Va. 241, 36 S.E.2d 419 (1945).

Robert S. Jacobson, Lewisburg, for appellant.

Jesse O. Guills, Jr., Lewisburg, for Wm. Perrine.

Robert N. File, Beckley, for Roles Transport & Arby Smith.

PER CURIAM:

The appellant, Robert David Jones, appeals from the denial of his motion for a new trial by the Circuit Court of Greenbrier County. He maintains that the trial court erred by deleting language in two of his proposed instructions referring to the "slightest negligence" standard and by striking a portion of the deposition testimony of one of his physicians. ^* Following a brief recitation of the largely uncontroverted facts involved, we will address each of these assignments of error.

I

On a rainy April 15, 1980, after consuming his lunch, including an unspecified quantity of beer, the appellant telephoned appellee City Cab to secure transportation to his apartment at a building owned by appellee William H. Perrine. A taxicab, driven by appellee Arby B. Smith, arrived a short time later. Although it was uncontroverted at trial that the appellant had been drinking, his level of intoxication was disputed. In any case, as the appellant was exiting the vehicle after its arrival at his apartment building, he slipped and fell on an oil deposit apparently left by vehicles that parked on the building's parking lot. As the result of this fall, the appellant sustained a fractured skull and a large epidural hematoma. Although he was able to return to work in October 1980, following emergency neurosurgery and a parietal craniotomy, the evidence indicated that he suffers from permanent brain damage and periodic seizures.

On December 16, 1983, following a four day trial, the jury returned a verdict in favor of the appellees. Judgment was entered on the jury's verdict on January 17, 1984. On January 19, 1984, the appellant filed a motion for a new trial. A hearing on the appellant's motion for a new trial was heard on February 24, 1984. On March 28, 1984, supplemental grounds for the appellant's motion for a new trial were filed. The next day, on March 29, 1984, the trial court entered an order denying the appellant's motion for a new trial.

II

The appellant's first assignment of error involves the modification of his proffered instructions. The appellant's proposed instruction number two provided, in pertinent part, that:

The Court instructs the jury that it was the duty of the Defendant, Roles Transportation Inc., as a common carrier ... to use the highest degree of care for [the appellant's] safety known to human care, prudence and foresight, and is liable for the slightest negligence against which human care and foresight might have guarded.

The appellant's proposed instruction number three provided, in pertinent part, that:

The Court further instructs the jury that Roles Transportation Inc. as a common carrier has the duty to use the utmost care, diligence and foresight to protect passengers when boarding, riding in and alighting from its automobile and is therefore liable if negligent in the slightest degree.

The court, however, deleted the references to "slightest negligence" in these instructions, and substituted "failure to exercise the highest degree of care" language. The first instruction then provided that:

The Court instructs the jury that it was the duty of the Defendant, Roles Transport Inc., as a common carrier ... to use the highest degree of care for [the appellant's] safety known to human care, prudence and foresight, and is liable for the failure to exercise the highest degree of care which human care and foresight might have guarded.

The second instruction was also modified to provide that:

The Court further instructs the jury that Roles Transport Inc. as a common carrier has the duty to use the utmost care, diligence and foresight to protect passengers when boarding, riding in and alighting from its automobile and is therefore liable if negligent by failing to exercise the high degree of care imposed upon a common carrier.

As the appellant correctly notes, this Court explicitly approved an instruction in Isabella v. West Virginia Transportation Co., 132 W.Va. 85, 88, 51 S.E.2d 318, 320 (1949), overruled on other grounds, Syl. pt. 6, State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955), which provided, in pertinent part, that "the law ... holds public carriers ... liable for the slightest negligence ...." This "slightest negligence" standard has also been applied in several other common carrier tort actions in this jurisdiction. See Perkins v. Monongahela Valley Traction Co., 81 W.Va. 781, 786, 95 S.E. 797, 799 (1918); Syl. pt. 2, Bartley v. Western Maryland Ry. Co., 81 W.Va. 795, 95 S.E. 443 (1918); Brogan v. Union Traction Co., 76 W.Va. 698, 709, 86 S.E. 753, 757 (1915); Syl. pt. 1, Kennedy v. Chesapeake & O.Ry. Co., 68 W.Va. 589, 70 S.E. 359 (1911); Farley v. Norfolk & W. Ry. Co., 67 W.Va. 350, 355, 67 S.E. 1116, 1118 (1910); Syl. pt. 3, Searle's Adm'r v. Kanawha & O. Ry. Co., 32 W.Va. 370, 9 S.E. 248 (1889). On the other hand, this Court has also frequently utilized "highest degree of care" language in common carrier tort actions, often in conjunction with "slightest negligence" language. For example, in Syllabus Point 2 of Abdulla v. Pittsburgh and Weirton Bus Co., 158 W.Va. 592, 213 S.E.2d 810 (1975), this Court held that, "Although a common carrier is not an insurer of its passengers' safety, where the fare-paying relationship exists, the carrier owes the passenger the duty to use the highest degree of care compatible with the practical operation of a vehicle," while holding in Syllabus Point 3 that, "A carrier of passengers cannot excuse the slightest negligence on its part ...." See also Pritchard v. City Lines of West Virginia, Inc., 136 W.Va. 278, 281, 66 S.E.2d 276, 278 (1951), overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 342 n. 16, 256 S.E.2d 879, 885 n. 16 (1979); Isgan v. Jenkins, 134 W.Va. 400, 404, 59 S.E.2d 689, 691 (1950); Billy v Powell, 133 W.Va. 278, 286, 55 S.E.2d 889, 895 (1949); Syl. pt. 2, Laphew v. Consolidated Bus Lines, 133 W.Va. 291, 55 S.E.2d 881 (1949); Syl. pt. 2, Brown v. De Marie, 131 W.Va. 264, 46 S.E.2d 797 (1948); Adkins v. Raleigh Transit Co., 127 W.Va. 131, 134, 31 S.E.2d 775, 776-77 (1944); Gilmore v. Huntington Cab Co., 124 W.Va. 469, 473, 21 S.E.2d 137, 139 (1942); Syl. pt. 1, Bennett v. Bartlett, 110 W.Va. 478, 158 S.E. 712 (1931); Syl. pt. 4, Venable v. Gulf Taxi Line, 105 W.Va. 156, 141 S.E. 622 (1928); Syl. pt. 1, Thompson v. Monongahela Ry. Co., 99 W.Va. 207, 128 S.E. 110 (1925); Syl. pt. 2, Perkins v. Monongahela Valley Traction Co., supra; Syl. pt. 2, Bartley v. Western Maryland Ry. Co., supra; Syl. pt. 1, Brogan v. Union Traction Co., supra; Syl. pt. 6, Killmeyer v. Wheeling Traction Co., 72 W.Va. 148, 77 S.E. 908 (1913); Syl. pt. 1, Kennedy v. Chesapeake & O. Ry. Co., supra; Syl. pt. 3, Searle's Adm'r v. Kanawha & O. Ry. Co., supra.

In Syllabus Point 2 of Parker v. Knowlton Construction Co., 158 W.Va. 314, 210 S.E.2d 918 (1975), this Court held that:

Although a court is required to instruct or charge a jury on every important theory of claim or defense supported by the evidence of the case, the court is not bound thereby to charge the jury in the exact language proffered by a party's instruction. Within the constraints of fairly presenting all p...