McMicken v. Province

• Decision Date: 10 December 1955
• Docket Number: No. 10740,10740
• Citation: 59 A.L.R.2d 470,141 W.Va. 273,90 S.E.2d 348
• Court: West Virginia Supreme Court
• Parties: , 59 A.L.R.2d 470 Leon McMICKEN v. James E. PROVINCE.

Page 348

90 S.E.2d 348

141 W.Va. 273, 59 A.L.R.2d 470

Leon McMICKEN v. James E. PROVINCE.

No. 10740.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1955.

Decided Nov. 8, 1955.

Concurring Opinion Dec. 10, 1955.

Syllabus by the Court

1. "When a plaintiff is negligent and his negligence concurs and cooperates with that of the defendant, as a proximate cause of the injury complained of, he cannot recover.' Keller v. Norfolk & W. Ry. Co., 109 W.Va. 522, 156 S.E. 50.' Point 2, Syllabus, Casto v. Charleston Transit Company, 120 W.Va. 676 .

2. 'If the evidence is not sufficient to support a verdict for the plaintiff, or is such that the court would have to set aside the verdict if one were found for the plaintiff, the court should, on motion of the defendant, direct a verdict for the defendant.' Point 3, Syllabus, Ice v. County Court of Doddridge County, 77 W.Va. 152 .

3. 'Unless circumstances justifying a departure from it are shown, the rule for determining the amount of damages for injury to personal property is to subtract the fair market value of the property immediately after the injury from the fair market value thereof immediately before the injury, the remainder, plus necessary reasonable expenses incurred, being the damages.' Point 3, Syllabus, Biederman, Inc. v. Henderson, 115 W.Va. 374 .

Kay, Casto & Chaney, Robert H. C. Kay, Charleston, William H. Rardin, Point Pleasant, for plaintiff in error.

D. J. Savage, Charleston, S. D. Little-page, Point Pleasant, for defendant in error.

GIVEN, Judge.

The plaintiff, Leon McMicken, obtained a verdict against the defendant, James E. Province, in the Circuit Court jof Mason County for $5,000, for personal injuries and for damages to her automobile, alleged to have resulted from negligence of defendant in the operation of his automobile. The trial court overruled the motion of defendant to set aside the verdict and grant him a new trial, and entered judgment against defendant on the verdict. This Court granted a writ of error and supersedeas.

The accident occurred June 29, 1953, about 5:00 or 5:30 o'clock p.m., on State Route 17, approximately eight miles east of Point Pleasant. The road, at the point and at the time of the accident, was dry, and the day clear. Plaintiff, alone in her 1949 custom, four door sedan, six cylinder DeSoto automobile, was driving west from Charleston toward Point Pleasant, and defendant was driving his Buick automobile in the same direction, west, with two passengers, Johnson in the front seat and Denny in the rear seat. While defendant was attempting to pass the automobile of plaintiff, or immediately after he had passed it, the automobile of plaintiff left the hard surface of the highway, ran on to the shoulder thereof, to the right of plaintiff, for approximately three hundred and fifty feet, striking a telephone pole at approximately one hundred feet, and a tree at approximately three hundred and fifty feet. The paved portion of the road, at the point of the accident and for some distance east thereof, is twenty feet in width, with a fifteen foot shoulder on the northerly side, the side to the right of plaintiff, and a twelve foot shoulder on the southerly side, the side to the left of defendant. The highway is practically straight, and practically level, for approximately one half mile east of the point of the accident, except that there is a slight rise beginning at an approximate distance of five hundred feet east of the point of the accident and continuing to near the tree stuck by plaintiff's automobile.

To the right of one traveling toward Point Pleasant, on the straight portion of the road, and at a distance greater than eighteen hundred feet east of the point of the accident, is located a business building designated in the record as the 'Snack Shop'. Just west of the Snack Shop is a public school building; just west of the school building is the Dow residence; still further west, and approximately six hundred feet east from the point of the accident, a private road, serving a part of the Williamson farm, intersects State Route 17, at which intersection defendant's witness Dow was seated on a farm tractor at the time of the accident. On the southerly side of State Route 17, opposite the above mentioned intersection, is the Williamson residence, and on the southerly side of State Route 17, east of the Williamson residence, is the Beech Hill Church.

Plaintiff, a married woman forty nine years of age, a former resident of West Virginia, but at the time of the accident a resident of Chicago, was returning to her home from Charleston at the time of the accident. She testified that while she was driving at a speed of forty five or fifty miles per hour, defendant passed her at a 'high rate of speed, and he went on for a piece and he slowed down and ran over to the shoulder and slowed down to the left side of the shoulder, and when I got to the point he was a little ahead of me he began to cut it and swerved across the highway in front of me, and then would go to the left shoulder and when I would get there he would cut again, and he continued to do that for about a quarter of a mile down the highway. The thing I remember is a jar or bump and then I don't remember anything until they were waking me up, at least until I came to', and that defendant cut his automobile in front of her 'say ten or twelve times' in the quarter of a mile. She further testified to the effect that she did not hear defendant sound his horn when he started to pass her; that she did not speed up her own automobile; that she 'didn't attempt to stop. I didn't know what he was up to, and I said, I will keep rolling. I didn't know what he was up to'; and that she didn't know why he was 'molesting' her.

Near the time of the accident, Lee Meadows, driving a large truck, and his helper, James M. Day, traveling east, were approaching the point on the highway where the accident occurred. They were called as witnesses by plaintiff. Meadows testified to the effect that when he first observed the automobiles of plaintiff and defendant they were 'between 350 and 400 yards' from him; that the automobiles 'were side by side and the Buick was attempting to pass or was out in the left lane to pass the DeSoto'; that the 'Buick turned towards the DeSoto * * * and * * * it looked to me like he hit the car'; and that the Buick automobile was 'at least 200 yards or better' from the truck he was driving when it passed the DeSoto and got into the right lane. The witness Day testified to the effect that when he first observed the Buick and DeSoto automobiles they were side by side; that the Buick 'cut toward the DeSoto, the DeSoto left the road, and the Buick continued up the road'; that he believed, but could not be sure, that the Buick hit the DeSoto; and that the speed of the two automobiles, in his opinion, was 'between 50 and 60 miles an hour'.

Defendant testified to the effect that below the Snack Shop he caught up with plaintiff's automobile, sounded his horn and attempted to pass; that plaintiff 'speeded her car up. I kind of slowed down and so did she. I blowed my horn and started around again and I kept on continuing and she kept speeding up, and I did too until I got around, and about the time I got even with her there was a little vibration on my car, but then I went around her * * *'; that when he sounded his horn to pass he was traveling fifty miles per hour; and that when his automobile passed the automobile of plaintiff he was traveling about seventy five miles per hour. On cross-examination, he admitted that he had stated to the member of the Department of Public Safety who investigated the accident that he was driving at the rate of sixty miles per hour when he started around plaintiff's automobile. Defendant's witness Johnson, who was riding in the front seat with defendant, testified to the effect that defendant was traveling 'between fifty and fifty-five miles' per hour prior to the time when he caught up with plaintiff's automobile; that when he caught up with plaintiff's automobile he sounded 'his horn and started around' her; that as he started around she 'speeded up' her automobile; that he dropped back 'momentarily and started around her again and sounded his horn, and we went down the road side by side'; that defendant passed plaintiff on the second attempt; and that the Buick was about one hundred yards from the truck when the Buick got back into its right lane. The witness Denny, who was riding in the rear seat of defendant's automobile, testified to the effect that defendant 'pulled up behind this DeSoto and sounded the horn, and started swinging out to his left to go around, and the DeSoto seemed as though it pulled up a little faster, or he was looking at the road and didn't want to go around, and he swung a little behind, not clear back, and sounded the horn again and he went to go around and the woman sped the DeSoto up, and they ran for a quarter of a mile neck and neck'; that at the time defendant started to pass plaintiff the DeSoto was traveling 'around sixty miles an hour, maybe better than that'; and that defendant was driving between seventy and eighty miles per hour 'at the time he went around her'. These two witnesses expressed opinions that the two automobiles did not touch while the Buick was passing, but on rebuttal the witnesses Meadows and Day testified, in effect, that Johnson, after he had returned with defendant to the point of the accident, stated that he, Johnson, had told the defendant, after he had passed the DeSoto, 'that he had hit this woman and he better stop and go back'.

The defendant's witness Dow, who was seated on the farm tractor at the time, as above pointed out, observed the automobiles of plaintiff and defendant approaching from the east from a point near the Dow residence, a distance of approximately eighteen hundred feet. He testified that at that distance from him the Buick had ...