Korzun v. Shahan

• Decision Date: 29 November 1966
• Docket Number: No. 12563,12563
• Citation: 151 W.Va. 243,151 S.E.2d 287
• Court: West Virginia Supreme Court
• Parties: Thomas KORZUN, an infant, etc., and Jack Korzun, as father, etc., of Thomas Korzun v. David SHAHAN, an infant, and Virgie Shahan.

Page 287

151 S.E.2d 287

151 W.Va. 243

Thomas KORZUN, an infant, etc., and Jack Korzun, as father, etc., of Thomas Korzun v. David SHAHAN, an infant, and Virgie Shahan.

No. 12563.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1966.

Decided Nov. 29, 1966.

Syllabus by the Court

1. In an action to recover damages for personal injuries, the questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.

2. Assumption of risk is available as a defense only where one places himself in a posture of known danger with an appreciation of such danger.

3. 'In an action for damages for personal injuries, a defendant can not rely on the sudden emergency doctrine where his own action has created, in whole or in part, the sudden emergency.' Point 10, Syllabus, Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18.

4. 'In a negligence action, growing out of the operation of an automobile, the defense of contributory negligence or assumption of risk on the part of a plaintiff is not available to a defendant who is guilty of wanton and wilful conduct, which operates to injure the plaintiff.' Point 6, Syllabus, Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742.

5. Where evidence exists from which it may be concluded that a defendant driver was conscious of his conduct, and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously did some wrongful act which resulted in injury to another, the question of whether he was guilty of wilful and wanton conduct is for jury determination.

6. 'Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.' Point 1, Syllabus, The State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206.

7. 'In an action wherein the compensation which the plaintiff is entitled to recover is indeterminate in character, the verdict of the jury may not be set aside as excessive unless it is not supported by evidence or is so large that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.' Point 4, Syllabus, Browder v. County Court of Webster County, 145 W.Va. 696, 116 S.E.2d 867.

Oakley J. Hopkins, Morgantown, for appellants.

Clark B. Frame, Morgantown, for appellees.

CAPLAN, President:

In this civil action, instituted in the Circuit Court of Monongalia County, the plaintiffs, Thomas Korzun, an infant who sues by his next friend, Jack Korzun, and Jack Korzun as the father and natural guardian of Thomas Korzun, seek to recover damages for personal injuries and medical expenses from the defendants, David Shahan, an infant, and Virgie Shahan, his mother. It is alleged in the complaint that the injuries were received and the medical expenses incurred by reason of the negligent and careless operation of an automobile by defendant David Shahan.

It appears from the record that the defendant, Virgie Shahan, was the owner of a 1964 Ford automobile which, with her permission, on the night of July 24, 1964, was being driven by David Shahan, then sixteen years of age. Plaintiff Thomas Korzun, an infant fourteen years of age, and Larry Duley, age seventeen, were passengers in the Shahan vehicle on that occasion. The three boys occupied the front seat of the automobile, Thomas Korzun being seated in the middle. David Shahan, with his passengers, drove around the city of Morgantown for several hours, after which he drove out on State Route No. 119 toward the city of Grafton. Upon driving approximately ten miles he turned the automobile around and started back toward Morgantown. It was during this return trip, while traveling at an excessive rate of speed, that defendant Shahan lost control of his car, causing it to crash violently into a ravine, thereby severely injuring the plaintiff, Thomas Korzun.

According to the testimony of plaintiff Thomas Korzun, the drive toward Grafton on State Route No. 119 was uneventful, the defendant then operating his automobile at a speed of from fifty-five to sixty miles per hour. However, when the defendant turned his vehicle around and started back to Morgantown the situation changed. The plaintiff testified that the defendant, while proceeding down a long grade, began to drive at an excessive speed. Referring to the defendant, plaintiff related, 'he wanted to set if he could hit the peg, but he didn't want to break it'. He said that the defendant used those words. Translated to understandable English, this means that the defendant wanted to see how fast the car would travel. Testifying further, the plaintiff said that when the car was traveling between eighty and ninety miles per hour, 'I told him to slow down the car; that he was going to tear his mother's car up. I thought maybe that would scare him, but it never'.

Thomas Korzun then related the manner in which the collision occurred. He said that the defendant drove around a curve too fast and went off onto the right hand berm of the road; that the car 'fishtailed', meaning that 'It was weaving back and forth in the back end'; that it traveled approximately one hundred fifty yards down the highway in that manner and finally went off the lefthand side of the road, over the bank into the air and crashed into a ravine. The plaintiff was thrown through the windshield of the defendant's car, landing approximately ninety feet away.

Herbert Richardson, a member of the Department of Public Safety, testified that when he arrived at the scene of the accident he observed the wrecked vehicle in the underbrush of the ravine, David Shahan lying on the ground at the left rear of the car and Thomas Korzun lying near the highway on the berm of the road. The following questions and answers appear in the record: 'Q. Trooper, were you able, from the physical evidence and facts surrounding the accident, to determine the pattern of the automobile as it collided and went through the air? * * * A. It appeared that the vehicle had run off the road near the Coffee Shop going toward Morgantown upon the righthand side of the bank and down off the bank across the highway, across the driveway, and rolled over twice and came to position in the ravine. * * * Q. What speed did it appear to have been going? A. Anywhere between 100 and 110 miles per hour.'

Trooper Richardson further testified that he preferred charges against defendant David Shahan, charging him with 'Reckless driving, with willful and wanton disregard for the safety of others'. The defendant later went to the office of the justice of the peace where the complaint was filed, entered a plea of guilty and paid the fine and costs.

The testimony of Larry Duley, the other passenger in the Shahan automobile, reveals that during the drive from Morgantown on State Route No. 119, David Shahan did not advise either of his passengers that he was going to attempt to determine how fast the vehicle would go. This witness first learned that the defendant was going to attempt this speed after he turned his car around and 'was proceeding down the mountain'. The following testimony appears: 'Q. In conclusion, there was no conversation whatever about driving that car as fast as it would go, or trying to hit the peg, or anything else prior to the time that David Shahan started down that mountain? A. No, sir.'

The testimony of David Shahan varies from that of the plaintiff and other witnesses, but it is readily discernible that he drove his automobile at speeds greatly in excess of the legal limits immediately prior to its violent encounter with the surrounding countryside and ravine where it finally came to reat. He related that on the drive from Morgantown he attained speeds of seventy-five to eighty miles per hour; that Thomas Korzun registered no complaint about the speed of the vehicle; that when he stopped to turn around the plaintiff made no effort to get out of the car; and, that though he admitted driving at an excessive rate of speed on the return trip, the plaintiff did not express any fear or displeasure in relation to the operation of the automobile.

On cross-examination this defendant stated that he at no time advised his passengers that he was going to test the speed of his vehicle. He said that he did not think he was driving in excess of one hundred miles per hour on the return trip, although he admitted he did not look at his speedometer. His estimation of his speed at that time was eighty miles per hour. Recounting the manner in which the collision occurred, David Shahan testified that, as he was driving down the highway, a car was 'coming at me with the bright lights'. He inferred that the car forced him off the road, although he admits that it did not collide with him. After he drove off the right side of the road he does not remember what happened, thereby neither admitting nor disputing certain evidence related by Trooper Richardson and other witnesses. In relation to the charges filed against him by Trooper Richardson, the defendant readily admitted that he entered a plea of guilty and paid a fine and costs.

As a result of this unfortunate occurrence, Thomas Korzun received serious injuries and was hospitalized for five days. Doctor Maynard Pride, the plaintiff's attending physician, testified to the plaintiff's injuries, his treatment and the reasonableness of the medical and hospital bills. The medical evidence also includes the testimony of Doctor Justus C. Pickett, an orthopedic surgeon, to whom Thomas Korzun was referred for examination and treatment. In the opinion of Doctor Pickett, the injury suffered by the plaintiff will result in some permanent restriction in the...