Lawrence v. Nelson, 11069

• Decision Date: 14 March 1960
• Docket Number: No. 11069,11069
• Citation: 113 S.E.2d 241,145 W.Va. 134
• Court: West Virginia Supreme Court
• Parties: Patricia Ann LAWRENCE, an Infant, etc. v. Jack William NELSON.

Page 241

113 S.E.2d 241

145 W.Va. 134

Patricia Ann LAWRENCE, an Infant, etc. v. Jack William NELSON.

No. 11069.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1960.

Decided March 8, 1960.

Concurring Opinion March 14, 1960.

Syllabus by the Court.

1. 'When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the question of negligence is for the jury.' Pt. 2, syllabus, Prettyman v. Hopkins Motor Co., 139 W.Va. 711 .

2. 'It is ordinarily a question of fact for the jury to determine whether or not a motorist is justified in turning to the left in order to avoid another vehicle coming from the opposite direction on the wrong side of the road.' Pt. 1, syllabus, Gilbert v. [Lewisburg] Ice Cream Co., 117 W.Va. 107 .

3. 'The verdict of a jury in an action for personal injuries will not be set aside as excessive unless it is unsupported by the evidence, or is so large as to indicate that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.' Pt. 4, syllabus, Yuncke v. Welker, 128 W.Va. 299 .

4. 'Whenever a statement is made by one under such circumstances that it may be regarded as spontaneous and as the direct result of a transaction to which he was a party, it becomes a part of the transaction itself, and if proof of the fact is material to the inquiry being made such statement will be received in evidence as tending to establish such fact.' Pt. 2, syllabus, Blagg v. [Baltimore & O.] Railroad Co., 83 W.Va. 449 .

5. Ordinarily, evidence of the general character or reputation of a defendant in a civil action is not admissible, unless the element of criminal intent on the part of the defendant is involved.

6. 'Facts may properly be assumed as the basis of a hypothetical question propounded to an expert witness, when there is evidence tending to prove them; for such purpose it is not necessary that they should be undisputed.' Pt. 1, syllabus, [Fairview] Fruit Co. v. [H. P.] Brydon & Bro., 85 W.Va. 609 .

7. If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.

8. An instruction based on the age of the plaintiff and her life expectancy, which tells the jury that it can award damages for future pain and suffering resulting from the injuries she received, is proper, with regard to this element of damages, where evidence shows the reasonable certainty of such future pain and suffering; and the age of the plaintiff, in order to determine life expectancy, may be ascertained by the jury from all the facts and circumstances in the case, and from their own knowledge as to what they have observed with regard to the age, health, appearance and other facts before them while they were engaged in their official capacity as jurors during the regular proceedings in connection with the trial.

Steptoe & Johnson, Carl F. Stucky, Jr., Charleston, W. Va., for plaintiff in error.

Lane & Preiser, John J. Lane, Charleston, W. Va., for defendant in error.

BERRY, Judge.

This is an action of trespass on the case brought by the plaintiff, Patricia Ann Lawrence, an infant, who sues by Marguerite Miller, her next friend, to recover damages from the defendant, Jack William Nelson, for personal injuries sustained by the plaintiff as a result of an automobile accident which occurred on the West Virginia Turnpike near Milepost 81. The case was tried in the Common Pleas Court of Kanawha County in May, 1958, before a jury which rendered a verdict of $15,000 for the plaintiff, upon which judgment was entered on September 17, 1958. The Common Pleas Court overruled a motion to set aside the verdict and the Circuit Court of Kanawha County refused to grant a writ of error. Upon petition to this Court, a writ of error and supersedeas was granted on June 9, 1959.

The declaration charged the defendant with exceeding the speed limit, failing to keep on his side of the road, failing to keep his vehicle under proper control and to operate it in a careful and prudent manner.

The evidence as to the cause of the accident is conflicting. It occurred about 10 p. m. on April 15, 1957, on the West Virginia Turnpike near the Marmet overpass and Milepost 81. The plaintiff was a passenger in a 1956 Ford automobile, driven by her husband, Jerry M. Lawrence, and owned by her mother-in-law, Marguerite Miller. The automobile in which the plaintiff was riding was proceeding in a southerly direction from Charleston. The defendant, Jack William Nelson, was driving alone in a 1956 Lincoln automobile, owned by him, in a northerly direction from Beckley toward Charleston. The version of the accident by Lawrence and the plaintiff is that they were following another car about 700 feet ahead of them, and after the defendant, Nelson, met and passed the automobile in front of them, he drove his car over to their side of the road and Lawrence then steered his automobile to the left in order to avoid hitting the Nelson car, and when the Nelson car was about 125 feet away it was turned back onto his, Nelson's, side of the highway, and by the time Lawrence was over on the berm on Nelson's side of the road, Nelson's car was driven off the pavement and collided with the Lawrence car on the berm. The left front of the Nelson car hit the left front of the Lawrence car and both cars were stopped as a result of the impact. There is some conflict in the evidence with regard to how much of the cars was off the concrete part of the road and as to their exact positions, but it appears that both automobiles were either completely or almost completely on the berm of what was the proper side of the highway for the Nelson car, but the wrong side for the Lawrence car, and the cars were stopped almost parallel with each other, with the front ends pointing toward the Kanawha River or the eastern side of the highway. The cars collided almost head-on and considerable damage was done to each car, and a result of the collision Lawrence was dazed and the plaintiff and Nelson were seriously injured.

The speed limit on the Turnpike at the scene of this accident is 60 miles per hour. Lawrence stated that he was driving about 55 miles per hour and Nelson denies that he was speeding. Nelson was rendered unconscious and lost his memory as a result of the accident and has only partially regained it. What he does remember up to the time of the accident is the direct opposite of Lawrence's testimony. Nelson says he saw two sets of headlights approaching him and that he turned his car to his own side in order to get out of the highway, whereupon, his car was struck. There is a slight curve near the scene of the accident and Nelson states that he saw the two sets of headlights coming toward him as he entered the curve.

Several witnesses testified on behalf of the plaintiff to the effect that they smelled the odor of alcohol on Nelson at the time he was brought into the hospital in Charleston following the accident. However, this testimony was contradicted by several witnesses who testified on behalf of Nelson and who were near him in the hospital, their testimony being that they did not detect any odor of alcohol on Nelson. Nelson was unconscious at the time and nothing was testified to except the odor of alcohol. The defendant offered several witnesses to prove his reputation for sobriety, to which the plaintiff objected, and the court refused to allow such evidence to be considered.

There were no witnesses to the accident other than the occupants of the two cars. The first motorist to arrive on the scene was Frank K. Hereford. Mr. Hereford stated that when he arrived on the scene there was dust settling around the cars; that steam was coming from them and the cars were close together; the plaintiff was lying in the road and the defendant was still in his automobile; Lawrence was standing near where the concrete meets the berm and was waving to stop him; that Lawrence was quite excited and urged him to get an ambulance. Mr. Hereford further stated that within two to five minutes after he arrived on the scene he asked Lawrence what happened, and Lawrence told him that he was proceeding south and observed the other car approaching, that it appeared as though the other car was not going to make the curve and he, realizing that the car was going to strike him, cut his car to the left, and, as he did so, the driver of the approaching car cut its wheels to the right and the two cars collided. This witness further says that he did not observe any skid marks made by the Lincoln car. However, State Trooper Heflin, who testified for the defendant, stated that his investigation disclosed that skid marks of 81 feet and 36 feet were made by the Lincoln automobile on the berm leading up to where the two cars collided.

The statement by Hereford as to what Lawrence told him when he arrived at the scene of the accident is almost identical with that made by Lawrence during the trial. The defendant objected to the admission of this evidence by Hereford on the theory that it was not part of the res gestae, because it was in response to a question and would result in Lawrence testifying twice. However, almost the same statement was introduced in evidence by plaintiff on cross examination of the state police officer, Heflin, who testified on behalf of the defendant, and no objection was made by the defendant to the introduction on cross examination of this statement elicited from his own witness.

The plaintiff introduced Clarence S. Bruce of Ft. Myers, Florida, who testified as an expert witness and who qualified as a 'traffic accident analyst', having been employed by the Federal Bureau of Standards during which time he developed...