Kretzer v. Moses Pontiac Sales, Inc.

• Decision Date: 15 March 1974
• Docket Number: No. 13343,13343
• Citation: 157 W.Va. 600,201 S.E.2d 275
• Court: West Virginia Supreme Court
• Parties: Nannie KRETZER v. MOSES PONTIAC SALES, INC., a corporation, doing business as National Car Rental System, et al.

Page 275

201 S.E.2d 275

157 W.Va. 600

Nannie KRETZER v. MOSES PONTIAC SALES, INC., a corporation, doing business as

National Car Rental System, et al.

No. 13343.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 9, 1973.

Decided Dec. 18, 1973.

Rehearing Denied March 15, 1974.

Syllabus by the Court

1. Instructions should not be repetitious and duplication of instructions is unnecessary and undesirable.

2. 'If the way appears clear to a pedestrian, he may proceed to cross a street or highway, and whether or not he is guilty of negligence in so doing is generally a question of fact for jury determination.' Point 3, syllabus, Stamper v. Bannister, 146 W.Va. 100 (118 S.E.2d 313).

3. 'A pedestrian crossing a street between street crossings in violation of an ordinance, is not necessarily precluded from recovery. His violation of the ordinance is Prima-facie negligence, but to preclude recovery it must naturally and proximately result in his injury. This latter question is clearly within the province of the jury to solve.' Pt. 3, syllabus, Meyn v. Delaney-Miller Auto Co., 118 W.Va. 545, (191 S.E. 558).

4. 'When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination.' Point 1, syllabus, Lewis v. McIntire, 150 W.Va. 117 (144 S.E.2d 319).

5. An injured person is entitled to recover damages for reasonable and necessary nursing services rendered to him, whether such services are rendered gratuitously or paid for by another.

Greene, Ketchum & Baker, James D. Nash, Jr., Huntington, for appellant.

Campbell, Woods, Bagley, Emerson, McNeer & Herndon, R. G. McNeer and C. F. Bagley, Huntington, for appellees.

BERRY, Chief Justice:

This is an appeal by Nannie Kretzer, the plaintiff below, hereinafter referred to as plaintiff, from a final order of the Circuit Court of Wayne County entered on October 2, 1972 wherein the court sustained the motion on behalf of the defendants, Fletcher S. Stevens and Harry Wilson, doing business as Harry's Boulevard Esso, to set aside the verdict of the jury for the plaintiff in the amount of $30,000 and to grant the defendants a new trial. The plaintiff alleges the court erred in setting aside the jury verdict and granting the defendants a new trial. This Court granted plaintiff's appeal on March 5, 1973 and on April 2, 1973 granted the defendants' cross-assignment of error under the provisions of Rule XI of the Supreme Court Rules. The case was submitted for decision by this Court on October 9, 1973 upon the arguments and briefs on behalf of the respective parties.

On November 7, 1970 the plaintiff, who at that time was 74 years of age, sustained a serious injury to her left leg when she was struck by a car driven by defendant Stevens as she was crossing U.S. Route 60 in Ceredo, West Virginia. The accident occurred approximately 64 feet west of the intersection of Main Street and U.S. Route 60. At the scene of the accident Route 60 is a four lane highway which runs generally in an east-west direction while Main Street is a two lane street running in a north-south direction. The plaintiff was walking from her home, which was located on the north side of Route 60, to catch a bus at the southwest corner of the intersection of Main Street and Route 60. She was walking east toward the intersection on the north side of Route 60 when she noticed that the stop light at the intersection had turned red to stop the eastwest traffic on Route 60. Plaintiff testified she then looked up and down Route 60, and not seeing any cars approaching, started across the four lane highway at a point approximately 64 fet from the intersection. Defendant Stevens had stopped his car in the northbound lane of Main Street at the stop light. When the light turned green for the north-south traffic on main Street, Stevens turned left and began to proceed in a westerly direction in the inside lane on Route 60, at which time the car's right front fender struck the plaintiff. The plaintiff testified that she never saw the car that struck her until the moment of impact, although there was an unobstructed view from where she began to cross the highway and the point at which Stevens' car was stopped for the light in the northbound lane of Main Street. Stevens testified that he did not see the plaintiff until the moment of impact even though he also had an unobstructed view. Stevens stopped the car immediately after the impact and the plaintiff testified that he told her, while she was lying on the highway, that it was his fault and that he would not have hit her if he had not have been speeding. Plaintiff also testified that once she had started to cross the highway she was looking directly in front of her to make sure she did not trip or fall and did not again look for cars approaching.

One of the plaintiff's witnesses, Bobbie Chambers, testified that she was driving east on Route 60 in the left hand lane, or inside lane, and was about three or four car lengths west of the plaintiff while the plaintiff was crossing the highway. She further testified that the plaintiff never looked in her direction and that she slowed her car because she thought the plaintiff might continue to cross the highway and that if the plaintiff had continued she was prepared to stop 'and let her go by'.

As a result of the accident, the plaintiff underwent surgery and had a fifteen inch rod inserted in the femur bone in her left leg. The medical testimony revealed that as of March 31, 1972 the bones had not healed and Dr. Smith testified that the plaintiff was totally disabled. Plaintiff testified that more than a year passed before she could walk again and that she could only walk with the aid of a walker. She also testified that she is unable to place any weight on her left leg and that she is completely dependent on her daughter to take care of her. The plaintiff's unmarried daughter, who had always lived with the plaintiff, quit her job after the accident in order to care for her. The plaintiff was also allowed to introduce evidence over the objection of the defendants that the value of domestic services similar to those performed by the plaintiff's daughter would be between $50 and $75 a week.

At the time of the accident, Stevens was an employee of Harry Wilson, the owner and operator of a service station in Kenova, West Virginia. Stevens was returning a car owned by Moses Pontiac Sales, Inc. from the airport to the service station for servicing, under an arrangement between Wilson and Moses Pontiac, when the accident occurred. Moses Pontiac Sales, Inc. was dismissed as a defendant by the court on motion for summary judgment because there was no evidence of an agency relationship between Moses Pontiac and Wilson or Stevens.

After the jury verdict in favor of the plaintiff, the defendants filed timely motions under Rule 50, R.C.P., to set aside the jury verdict and enter judgment for the defendants or to set aside the jury verdict and grant the defendants a new trial under Rule 59, R.C.P. The trial court overruled the defendants' motion under Rule 50, R.C.P., but granted the defendants' motion to set aside the verdict and grant the defendants a new trial on the grounds that the court erred in refusing to give defendants' Instructions 9 and 9A. Instructions 9 and 9A, offered by the defendants and refused by the trial court when the case was submitted to the jury, reads as follows:

DEFENDANT'S INSTRUCTION NO. 9

The Court instructs the jury that every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway. However, it is also the law of the State of West Virginia, that every pedestrian, including the plaintiff, crossing a roadway at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. Therefore, if you believe from the evidence in this case that the plaintiff attempted to cross U.S. Route 60 at a point other than within a marked crosswalk at an intersection, and that she failed to yield the right-of-way to the defendant Fletcher Stevens, then the plaintiff was guilty of prima facie negligence, and if you further believe that such prima facie negligence contributed proximately to the injuries of which she complains, then she cannot recover and it is your duty to return a verdict for the defendants, Fletcher Stevens and Harry Wilson.

DEFENDANTS' INSTRUCTION NO. 9A

The Court instructs the jury that every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary. It is also the law of the State of West Virginia, that every pedestrian, including the plaintiff, crossing a roadway at a point other than within a marked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. Therefore, if you believe from the evidence in this case that the plaintiff attempted to cross U.S. Route 60 at a point other than within a marked crosswalk or other than within an unmarked crosswalk at an intersection, and that she failed to yield the right-of-way to the defendant Fletcher Stevens, then the plaintiff was guilty of prima facie negligence, and if you further believe that such prima facie negligence contributed proximately to the injuries of which she complains, then she cannot recover and it is your duty to return a verdict for the defendants, Fletcher Stevens and Harry Wilson.

These instructions are based on two sections under Traffic Regulations in the West Virginia Code, 17C--10--3(a), as amended, which reads:

Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the...