Lambert v. Goodman
| Citation | 147 W.Va. 513,129 S.E.2d 138 |
| Decision Date | 15 January 1963 |
| Docket Number | No. 12170,12170 |
| Parties | Ralph Forrest LAMBERT and Myrtle Frances Lambert v. Andy V. GOODMAN, Jr., et al., etc. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. When a motion is made for a directed verdict, the court should entertain every reasonable and legitimate inference favorable to the litigant opposing such motion fairly arising from the evidence, considered as a whole, and assume as true those facts which a jury might properly find under the evidence.
2. The court is never justified in directing a verdict if, on submission of the evidence to the jury, the court would not be justified in setting aside its verdict if it should be contrary to the verdict directed.
3. 'Where in the trial of an action at law before a jury the plaintiff and defendant each ask for, and the trial court gives instructions based on the supposed existence of evidence on a single point in the case, when in fact there is no evidence on which such instructions could properly be given, the error is one invited by the litigants, and neither can take advantage thereof in this Court * * *.' Part Syllabus, Dangerfield v. Akers, 127 W.Va. 409 .
Greene, Morgan & Ketchum, Chad W. Ketchum, Edward H. Greene, Claude M. Morgan, Huntington, for appellant.
Jenkins & Jenkins, John E. Jenkins, Jr., Norton & Norton, L. F. Norton, Huntington, for appellees.
This is an appeal by Myrtle Frances Lambert, one of the plaintiffs below, from a final judgment of the Circuit Court of Cabell County and from the order of that court overruling her motion for a new trial.
On December 7, 1959, Ralph Forrest Lambert, with his wife, Myrtle Frances Lambert as a passenger, was driving his 1955 Ford automobile in an easterly direction on Adams Avenue in the City of Huntington. Adams Avenue is a three lane street extending from east to west, the north lane of which is reserved for parking and the center and south lanes being used for west and eastbound traffic respectively. While so traveling on Adams Avenue, the Lambert automobile, attempting to pass a 1949 Ford truck, collided therewith, resulting in the damage and injury complained of in this civil action.
The truck was the property of Edna C. Ferguson, doing business as Ferguson Plumbing and Heating, and, at the time of this collision, was being driven by Andy V. Goodman, Jr., an employee of Mrs. Ferguson.
As a result of the collision, the Lamberts instituted this civil action, wherein, by separate counts of the complaint, Ralph Forrest Lambert sought recovery for damage to his automobile, and Myrtle Frances Lambert asserted a claim for personal injuries alleged to have been sustained by her. The plaintiffs alleged that the damage and injuries complained of were the result of the negligence of Goodman, the driver of the Ferguson vehicle, while he was acting as an agent of his employer. The action was instituted against Goodman and his employer, Mrs. Ferguson.
The defendants answered the complaint, denying all of the pertinent allegations stated therein, and affirmatively alleged that the plaintiffs were guilty of contributory negligence. In addition to her answer, Edna E. Ferguson, doing business as Feguson Heating and Plumbing, filed a counterclaim against the Lamberts for damage to her vehicle.
After a pre-trial conference, wherein the issues were defined, this case was tried before a jury. Substantial conflict was reflected by the testimony as to where and how the collision occurred. The plaintiffs contend that the vehicles collided approximately one hundred feet west of the Adams Avenue 3rd Street intersection; that the defendant's truck had stopped in the eastbound lane; and that when the plaintiffs attempted to pass, Goodman, without giving any signal, pulled out in front of their automobile, thereby causing the collision. The defendants contend that the accident took place in the intersection of Adams Avenue and 3rd Street; that Goodman, the driver of the Ferguson truck, pulled away from the curb and drove to the intersection; that he looked into his rear view mirror and saw no vehicles approaching; and that thereafter he turned left into the intersection and was struck by plaintiffs' vehicle which was traveling in the wrong lane.
At the conclusion of all the testimony, plaintiff, Myrtle Frances Lambert, through her counsel, moved for a directed verdict. This motion was based upon the complete lack of evidence of contributory negligence on her part. The defendants resisted the motion on the ground that there was evidence to show that plaintiff, Myrtle Frances Lambert, was engaged in a joint venture with her husband and further that there was evidence that she and her husband had been traveling down the wrong side of Adams Avenue for a considerable distance before this impact occurred. The motion was overruled by the court. After instructions were given and arguments of counsel made, the jury, after consideration of the case, returned the following verdict: 'We, the jury, do agree and find that none of the parties is entitled to recover from the other.' It is from this verdict and the court's denial of a motion for a new trial that plaintiff, Myrtle Frances Lambert, appeals.
In support of her appeal, plaintiff, Myrtle Frances Lambert, hereinafter referred to as appellant, assigns the following errors: (1) the trial court erred in overruling her motion for a directed verdict; (2) the verdict and judgment as to her are contrary to the law and the evidence of the case; (3) there is no evidence that she was guilty of contributory negligence; (4) the giving of defendants' instruction No. 3 over her objection; and (5) defendants' instruction No. 7 should not have been given.
A trial court, in consideration of a motion for a directed verdict, should entertain every reasonable and legitimate inference favorable to the litigant opposing such motion fairly arising from the evidence, considered as a whole, and assume as true those facts which a jury might properly find under the evidence. Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598; Costello v. City of Wheeling, 145 W.Va. 455, 117 S.E.2d 513; Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808; Roush v. Johnson, 139 W.Va. 607, 80 S.E.2d 857; Laphew v. Consolidated Bus Line, Inc., 133 W.Va. 291, 55 S.E.2d 881; Adkins v. Raleigh Transit Co., 127 W.Va. 131, 31 S.E.2d 775; Fielder v. Service Cab Company, 122 W.Va. 522, 11 S.E.2d 115.
It is well settled law that when a case, involving conflicting testimony and circumstances, has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it. Meadows v. Stickler, 144 W.Va. 644, 110 S.E.2d 380; Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894; Lewis v. Mosorjak and McDonald, 143 W.Va. 648, 104 S.E.2d 294; Dodrill v. Young, 143 W.Va. 429, 102 S.E.2d 724; Dangerfield v. Akers, 127 W.Va. 409, 33 S.E.2d 140. In such case the court is not justified in directing a verdict, if on submission of the evidence to the jury the court would not be justified in setting aside its verdict if it should be contrary to the verdict directed. Bradley v. Kenova Trading Company, 93 W.Va. 102, 115 S.E. 866.
Guided by these well established principles of law, let us consider and apply these principles to the case now before us. The record reveals not only a material conflict in the testimony but shows a divergence in theories as to the manner in which this accident occurred. The plaintiffs below insist that the collision took place on Adams Avenue, one hundred feet or more west of the intersection. The defendants, on the other hand, insist that the accident happened in the intersection while the driver of the truck properly was making a left turn into 3rd Street. There was testimony that the Lambert automobile was traveling at the rate of fifteen to twenty miles per hour. On cross-examination the following testimony was elicited from Goodman, the driver of the truck: There was a further conflict regarding the distance that the Lambert vehicle had been driven in the center lane prior to the collision.
Faced with this conflicting testimony, we are compelled to find, and so hold, that this was a proper case for jury determination. Certainly before the appellant would be entitled to recover, she must prove negligence on the part of the defendant driver and that such negligence was the proximate cause of her injuries. In view of this record the matter of negligence could be settled only by a jury. We are of the opinion, therefore, that the trial court was correct in overruling appellant's motion for a directed verdict.
The appellant contends that the jury verdict, by denying recovery to any of the parties,...
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