Lewis v. Mosorjak, s. 10934

• Decision Date: 03 July 1958
• Docket Number: 10982,Nos. 10934,s. 10934
• Citation: 104 S.E.2d 294,143 W.Va. 648
• Court: West Virginia Supreme Court
• Parties: Harold N. Lewis, Administrator of the Estate of Cora Alice Lewis, Deceased, v. John MOSORJAK and Homer McDonald.

Page 294

104 S.E.2d 294

143 W.Va. 648

Harold N. Lewis, Administrator of the Estate of Cora Alice

Lewis, Deceased, v. John MOSORJAK and Homer McDonald.

Nos. 10934, 10982.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1958.

Decided July 3, 1958.

Syllabus by the Court

1. Where two or more persons are guilty of negligent acts or omissions which in point of time and place concur, and together proximately cause or contribute to the injury of another person, they are guilty of concurrent negligence for which, in an action by an injured party or, in case of his death, by his personal representative, recovery against them may be had.

2. Whether the negligence of two or more persons is concurrent, and taken together proximately causes or contributes to the injury of another person is, as to all matters of fact, a question for jury determination and a verdict of a jury based upon facts will not be disturbed if it is supported by substantial evidence.

3. Separate and distinct negligent acts or omissions by two or more persons constitute the proximate cause of an injury when they continue in unbroken sequence until the injury occurs and directly and immediately contribute to and are the efficient cause of the injury.

4. 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.

5. It is the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses regarding them is conflicting; and the finding of the jury on such facts will not be disturbed by this Court.

6. When a case involving conflicting testimony and circumstances upon the questions of negligence and contributory negligence 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.

7. Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.

Clarence E. Martin, Jr., Martinsburg, Ralph J. Bean, Morrefield, J. S. Zimmerman, Ralph W. Haines, Romney, for plaintiffs in error.

H. Gus Muntzing, James E. Ansel, Moorefield, for defendant in error.

HAYMOND, President.

In this action of trespass on the case instituted in the Circuit Court of Hampshire County in January 19578 the plaintiff, Harold N. Lewis, Administrator of the Estate of Cora Alice Lewis, deceased, seeks a recovery from the defendants, John Mosorjak and Homer McDonald, of damages for the alleged wrongful death of his mother, Cora Alice Lewis, in a collision between a 1953 model Henry J automobile owned and operated by the plaintiff and a 1952 model Chevrolet automobile owned and operated by the defendnat, John Mosorjak, which occurred during the afternoon of Monday, April 2, 1956, on U. S. Highway No. 50 in Hampshire County and which the plaintiff alleges was caused by the negligence of the defendants.

The declaration contains six counts. The first count charges concurrent negligence against the defendants Mosorjak and McDonald; the second, third and fourth counts charge separate acts of negligence against the defendant Mosorjak; and the fifth and sixth counts charge separate acts of negligence against the defendant McDonald. At the conclusion of the evidence introduced in behalf of the plaintiff upon the trial of the case, the plaintiff withdrew his claim for damages insofar as it was based upon each of the last five counts of the declaration and elected to rely upon the first count.

The first count, on which the plaintiff bases his claim to recover, charges these negligent acts and omissions of the defendant Mosorjak: (1) That he met and attempted to pass the automobile driven by the plaintiff; (2) that he failed to operate his motor vehicle at a reasonable and prudent rate of speed in view of the wet condition of the surface of the highway; (3) that he failed to keep his motor vehicle under control; (4) that he failed to keep a lookout for other traffic using the highway; and (5) that he failed to keep to his right of the center line of the highway when meeting and attempting to pass the vehicle of the plaintiff; and charges these negligent acts and omissions of the defendant McDonald: (1) That he failed to keep a lookout for other traffic using the highway; (2) that in entering upon the highway from the exit from a side road he failed to yield the right of way to the defendant Mosorjak when the approaching automobile operated by the defendant Mosorjak was so near the exit that an immediate traffic hazard was created; and (3) that he failed to stop before entering the highway. The demurrer of the defendant Mosorjak to the declaration was overruled and each defendant entered his plea of the general issue.

At the conclusion of the evidence introduced in behalf of the plaintiff separate motions by each defendant to strike the evidence and direct a verdict for each defendant were overruled and at the conclusion of all the evidence similar motions by each defendant were overruled. The jury returned a verdict in favor of the plaintiff for $5,000.00 against both defendants. Separate motions by each defendant to set aside the verdict of the jury and grant a new trial and in arrest of judgment were likewise overruled and by order entered September 3, 1957, judgment was rendered in favor of the plaintiff and against both defendants for the amount of the verdict with interest and costs. To that judgment separate writs of error were granted by this Court upon the application of each defendant and upon submission of this case for decision the writs of error were consolidated and heard together.

The collision which resulted in the death of plaintiff's intestate occurred about one o'clock in the afternoon of April 2, 1956, on a main public highway designated as U. S. Highway No. 50, at a point about four and one-half miles east of Romney and about two-tenths of a mile west of the village of Shanks in Hampshire County, West Virginia. In that area the highway, on a gradual curve to the right, extends from east to west, is improved with a black asphalt surface and is practically level or on a slight grade for a distance of several hundred feet east and west of the place where the collision occurred. The improved portion of the highway is approximately twenty four feet in width. The berm on the south side is about five feet in width and the berm on the north side is about eight feet in width.

Immediately to the south of the highway a curving section of rad on the former location of the highway stems from the highway and extends in an easterly direction a distance of approximately 1,000 feet and then leads into the highway. The space or area between the highway and this roadway is used as a small park and picnic grounds. The western end of this roadway forms an entrance from the highway to the picnic grounds for motorists traveling east upon the highway and the eastern end constitutes an exit from the grounds to the highway. The distance from the entrance at the west end to the exit at the east end of the side road as measured in a straight line on the highway is approximately 900 feet. The view from the center of the exit along the highway to the west is clear and unobstructed for a distance of at least 900 feet and along the highway to the east for a distance of at least 600 feet.

A few minutes before the collision occurred the defendant McDonald, who was sixty either years of age and who resides in Winchester, Virginia, returning to that place from Clarksburg in his 1946 model Ford automobile, accompanied by his wife, left the highway on which he had been traveling in an easterly direction and drove his automobile upon the side road where he stopped and removed from the windshield and windows dirt cast upon them from the wet highway on which he had been traveling before entering the side road south of the highway. He then drove his automobile to the east end of the side road and stopped it near a large stop sign which was located on the right side of the side road at a distance of about forty five feet from the intersection of the eastern exit of the side road with the southern edge of the improved portion of the highway.

As or immediately before the defendant McDonald drove his automobile upon the highway, the defendant Mosorjak, who was forty years of age and was returning with his wife from Cairo, West Virginia, a town located about 150 miles west of Romney, to his home in Baltimore, Maryland, traveling east on the highway in a green 1952 model Chevrolet four door sedan automobile owned and operated by him approached the eastern exit of the side road at a speed of forty to forty five miles per hour. When a short distance west of the exit from which the automobile of the defendant McDonald was driven upon the highway, the defendant Mosorjak, in attempting to avoid a collision with the automobile of the defendant McDonald, suddenly applied the brakes of his automobile which continued its forward motion, veered to the left, crossed the broken white center line of the highway, and collided with the 1953 model Henry J automobile of the plaintiff, who was fifty three years of age and was returning from Augusta, Virginia, to his home in Romney, accompanied by his wife and mother, while he was driving it west on the right side of the highway at a speed of approximately forty five miles per hour. The front end and the right front side of the automobile of the defendant Mosorjak struck the front end and the right front side of the automobile of the plaintiff and turned it around. When it was struck the automobile of the plaintiff was either partly...