Meadows v. Stickler
| Decision Date | 06 October 1959 |
| Docket Number | No. 11027,11027 |
| Citation | 144 W.Va. 644,110 S.E.2d 380 |
| Court | West Virginia Supreme Court |
| Parties | Pete Michael MEADOWS, an Infant, etc. v. Lawrence STICKLER et al. |
Syllabus by the Court
1. A person confronted with a sudden emergency which he does not create, who acts according to his best judgment or, because of insufficient time to form a judgment, fails to act in the most judicious manner, is not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances.
2. An instruction which correctly states the law and is based upon evidence is a good instruction and, if not repetitious or misleading, should be given by the trial court when requested by the party who offers such instruction.
Dodrill, Barrett, Dunbar & Chafin, Huntington, for plaintiff in error.
Jenkins & Jenkins, John E. Jenkins, John E. Jenkins, Jr., Huntington, for defendants in error.
In this action of trespass on the case, instituted in the Circuit Court of Cabell County, the plaintiff, Pete Michael Meadows, an infant, seeks to recover damages from the defendants, Lawrence Stickler and Billie Jo Stickler, husband and wife, for personal injuries alleged to have been caused by the negligence of the defendants.
The case was tried upon the declaration of the plaintiff and the plea of not guilty filed by the defendants. After a motion by the defendants to strike the evidence in behalf of the plaintiff made at the conclusion of the evidence was overruled, the jury returned a verdict in favor of the defendants. The court overruled the motion of the plaintiff to set aside the verdict and grant him a new trial, entered judgment that the plaintiff recover nothing from the defendants, and awarded costs against the plaintiff and his next friend. To this judgment, rendered March 7, 1958, this Court granted this writ of error and supersedeas on October 10, 1958, upon the application of the plaintiff.
The plaintiff, an infant about four years of age and about three and one-half feet in height, residing at the home of his parents on the east side of 25th Street in the City of Huntington, was severely and permanently injured when struck by an automobile owned by Lawrence Stickler and operated by his wife, Billie Jo Stickler, while the plaintiff was attempting to cross that public street about 4:45 o'clock in the afternoon of May 13, 1957. 25th Street extends in a southerly direction from its intersection with 10th Avenue, curves to the left near the place where the plaintiff was injured, and is nineteen feet in width from curb to curb. At the time of the accident at least two automobiles, each approximately seven feet in width, were parked near the curb on the east side of 25th Street and their position left about twelve feet of the street between the parked automobiles and the west curb for vehicular traffic.
When the automobile driven by the defendant Billie Jo Stickler, moving south at a speed of between fifteen and twenty miles per hour, reached a point to the right of the rear end of the automobile parked in front of the home of the plaintiff, a station wagon, which appears to have been the second of the parked automobiles, the driver, who until that moment had not seen or discovered the presence of the plaintiff in the street, saw his head immediately in front of its left front fender. The automobile driven by the defendant Billie Jo Stickler was seventeen feet in length, about seven feet in width, and the top of its left front fender was about three feet above the surface of the street. The front end of the automobile struck the plaintiff and knocked him to a point on the right side of the street about three feet from the west curb. The driver immediately applied the brakes, steered the automobile to the right or west curb of the street, and brought it to a stop at a distance variously estimated at thirty to eighty feet south of the point at which the plaintiff was struck. None of the wheels of the automobile passed over the body of the plaintiff but the force with which the front of the automobile struck and knocked him to the hard surface of the street rendered him unconscious, and he remained on the street in that condition until carried from the scene within a few minutes after he was injured. He was taken to a hospital and there confined for nine days for treatment which included surgery to relieve him from the effects of a severe fracture of his skull.
The only witness who saw the automobile strike the plaintiff was its driver the defendant Billie Jo Stickler.
One witness in behalf of the plaintiff, a woman who lived near the home of the plaintiff on the east side of 25th Street, saw the plaintiff going from the east side of the street behind the station wagon and also saw him in the street after he had passed behind it but she did not see the plaintiff when he was struck by the automobile driven by the defendant Billie Jo Stickler. This witness, who was standing on the sidewalk near her automobile which was parked on the east side of the street about two and one-half car lengths north of the point at which the plaintiff was struck, also saw the automobile driven by the defendant Billie Jo Stickler when it passed her automobile at the time she saw the plaintiff go behind the station wagon and from behind it into the street. This witness testified that when the automobile passed the parked automobile of the witness its driver was looking to the left and toward the witness; that she did not know in which direction the driver was looking at the time the automobile struck the plaintiff; and that the driver of the automobile because of the curve in the street and the parked automobiles could not see the plaintiff in the street when the automobile driven by her passed the parked automobile of the witness.
Another witness in behalf of the plaintiff, a man who lived in a house on the west side of 25th Street opposite the home of the plaintiff, was sitting on his front porch, heard a noise, looked and saw the plaintiff fall to the pavement of the street and the car pass over him. He did not see the automobile strike the plaintiff but saw him lying in the street about three feet from the west curb and the automobile when it came to a stop about eighty feet south of the point where the plaintiff lay in the street.
Another witness in behalf of the plaintiff, a girl fifteen years of age, who was standing on the west side of 25th Street north of the scene of the accident heard but did not see the automobile strike the plaintiff and saw the plaintiff lying in the street after he was struck by the automobile.
The defendant Billie Jo Stickler, the only witness produced in behalf of the defendants, testified that as she drove the automobile south on 25th Street she saw a line of parked automobiles on the left side of the street; that as she entered the curve and approached the station wagon she was looking straight ahead; that she did not recall that she looked to the left at any time; that she did not see the plaintiff or any other children in or near the street; that when her automobile was even with the rear of the station wagon she suddenly saw the plaintiff's head and 'heard the thud of the car.'; that she saw the plaintiff's head in front of the left front fender of the automobile and heard the 'thud' simultaneously and that these incidents happened instantly; that the plaintiff was moving from left to right; that she immediately applied the brakes and steered the car to the right to avoid running over the plaintiff; that none of the wheels passed over the plaintiff; and that she brought the automobile to a stop within a distance of a length and a half of the automobile or approximately thirty feet.
Upon the foregoing evidence the question of negligence on the part of the defendants was a question for the jury. The evidence is conflicting as to whether the defendant Billie Jo Stickler was looking to the left or forward as the automobile approached the station wagon and as to whether she should have seen the plaintiff in the street before the automobile came to the rear of the station wagon; and the evidence does not definitely disclose whether the plaintiff was running or walking or how far he had traveled in crossing the street when he was injured. The facts...
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