Liston v. Miller

• Decision Date: 28 March 1933
• Docket Number: (No. 7475)
• Citation: 113 W.Va. 730
• Court: West Virginia Supreme Court
• Parties: Zella Vance Liston v. T. Clarke Miller

113 W.Va. 730

Zella Vance Liston

v.T. Clarke Miller

(No. 7475)

Supreme Court of Appeals of West Virginia.

Submitted February 28, 1933.

Decided March 28, 1933,

(Rehearing Denied June 3, 1933)

1. Appeal and Error

"A judgment) awarding a new trial of an action will not be reversed unless it is manifestly erroneous.'' Wilson v. Fleming, s9 w. Va. 553, 109) S. E. 810.

2. Instructions

"a bad instruction is not cured by the giving of a good one?' State v. Garner, 97 W. Va. 222, 226. 124 S. E. 6s1.

Litz, Judge, absent.

Error to Circuit Court, Monongalia County.

Action in trespass by Zella Vance Liston against T. Clarke Miller. To review a judgment setting aside a verdict in favor of the defendant and awarding the plaintiff a new trial, the defendant brings error.

Affirmed.

Lazzelle & Lazzelle and CKauncey M. Price, for plaintiff in error.

Ezra E. Hamstead and Terence D. Stewart, for defendant in error.

Kenna, Judge:

This is an action in trespass on the case in which Zella Vance Liston was plaintiff and T. Clarke Miller was defendant. The automobile accident from which the injury complained of resulted took place on the 26th day of September, 1930. in the City of Morgan town. The case was fully tried before a jury and resulted in a verdict for the defendant, which the trial court set aside, and the defendant below is plaintiff in error.

There were but two witnesses who testified concerning the accident. It occurred at about 10:15 P. M. and during a heavy rain. The plaintiff, a woman 55 years old, residing in 195 Grant Avenue, Morgantown, testified that she alighted from the Star City Bus at Second Street, Sunnyside. and University Avenue. She stepped back to the curb on her right, watched the bus out of sight, watched another large car coming down Second Street until it also was out of sight, "cautioned" herself, held her umbrella up high, looked both ways, saw no lights and, still holding her umbrella up high, started across Second Street, When she got about threefourths of the way across, or a little more, a car was almost on her. She screamed, jumped back and tried to get away from it but the front bumper caught her, swung her around and twisted her, she went into the street, and it dragged her, she thinks, thirty feet from the end of the car and traveled, she supposes, twelve feet before it stopped after striking her. she got up off the street, went back to the car, asked the driver why he did not stop, why he hit her, and he didn't answer. She asked why he was driving without lights on his car and he did not answer. She went around to the side of the car and asked why he didn't blow his horn, and he said he didn't have to. She asked him his name and he handed her a card stating: "You need not be worried, you will be taken care of." She testified that she was severely hurt in the right arm and shoulder and in her hips; that her injuries caused her to be unable to sleep; that she was hurt in both knees, her shoulders, side and hips; that her foot was hurting her badly: that there was a lump on her forehead and her eye was all black. She was strained on her left side but did not mind that so much as the right side that hurt her so badly; that it was the front bumper that came in contact with her; that the car was traveling 35 miles an hour when it struck her.

The defendant, on the other hand, testified that he was driving his Dodge coupe on the evening in question, with its headlights burning, and that as he came to the corner of Second Street and University Avenue, which was well lighted by street lights and by lights of the Mayfair Restaurant, he first saw Mrs. Liston about a foot or foot and a half directly to the left side beside his car; that she was walking with her umbrella down over her face, and that as soon as he saw she was in danger of running into his car from the side, he slapped on his four-wheel hydraulic brakes and stopped within a foot or two; that Mrs. Liston, as she came into the side of his ear near the left back fender, thrust out her right hand toward his car just as he was going to stop; that she had the umbrella in her left hand and he thinks a pocketbook or small package in her right; that the umbrella covered her from his view except from the chest down and he did not see her face; that he immediately jumped out, went back and talked with Mrs. Liston, who was on her feet, and was assured by her that she was not hurt; that his car was traveling slowly, he having stopped on account of another car that pulled directly in front of him at the intersection; that he was in neutral gear.

The evidence is admittedly in conflict, and, except for the question of controlling physical facts, was a proper case for jury determination.

The defendant below contends that the court should have granted his peremptory instruction. This contention is based on the argument that the evidence of the plaintiff below was and is in diametric conflict with controlling physical facts. It is contended that the injury to plaintiff's right leg being at a height of something like 21 1/2 inches from the ground could not have been inflicted by the front bumper of the defendant's automobile which was only some 17 1/2 inches from the ground at the top. Also it is said that since the defendant's automobile prior to the rain had been covered with dust turned into a light mud by the rain, and that the automobile did not disclose any signs of impact except at or near the left rear fender, where this light mud was smeared, that this, too, is a physical fact in favor of the defendant that cannot be overcome by the plaintiff 'si proof. It is also contended that since plaintiff testified that she was dragged some thirty feet, and testified also that defendant's car traveled but twelve feet after hitting her, that there is a material and irreconcilable discrepancy in her own testimony. We do not consider that any one of these circumstances, nor the combined circumstances, meets the test of controlling physical facts. Their weight and effect were for the jury. They are not sufficient to control...