Metro v. Smith

• Decision Date: 27 February 1962
• Docket Number: No. 12111,12111
• Parties: John Douglas METRO, etc., v. William F. SMITH, Jr. Anna METRO v. William F. SMITH, Jr.
• Court: West Virginia Supreme Court

Page 460

124 S.E.2d 460

146 W.Va. 983

John Douglas METRO, etc., v. William F. SMITH, Jr.

Anna METRO v. William F. SMITH, Jr.

No. 12111.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1962.

Decided Feb. 27, 1962.

Syllabus by the Court

1. '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.' Point 3, Syllabus, Davis v. Sargent, 138 W.Va. 861 .

2. Where the concurrent negligence of two or more persons combined together results in an injury to a third person, recovery may be had as to either or all of such wrongdoers: each of such joint tort feasors is liable for the entire damages without regard to the comparative degrees of negligence, though only one recovery may be had.

3. 'Although an instructionn standing alone may have been misleading, the verdict of the jury will not be disturbed on its account where the objection was removed by the giving of other consistent instructions.' Point 3, Syllabus, Hesson v. Penn Furniture Co., 70 W.Va. 141 .

Fletcher W. Mann, Beckley, for appellant.

Ned H. Ragland, Beckley, for appellees.

GIVEN, Judge.

John Douglas Metro, an infant seventeen years of age, instituted an action in the Circuit Court of Raleigh County, against William F. Smith, Jr., for recovery of damages for personal injuries alleged to have resulted from negligent operation of an automobile by defendant. Another action was instituted against the same defendant by Anna Metro, mother of the infant, for recovery of medical and hospital expenses necessarily incurred in treatment of the injuries to the infant growing out of the accident. The cases were consolidated, and a verdict was returned in the principal case for plaintiff in the amount of $3,500.00, and in the other case for the amount of $1,399.30. Judgments in the amounts of the respective verdicts were entered against the defendant. The same principles are controlling as to each judgment.

The accident occurred on March 19, 1960, about ten o'clock P.M., on U. S. Route No. 21, between Beckley and Mt. Hope. A vehicle in which the infant plaintiff was riding was traveling in a northerly direction, in a direction toward Mt. Hope. The vehicle belonged to the mother of the infant plaintiff and was being operated by his sister. In addition to the infant plaintiff and his sister, three other persons were passengers in the vehicle, usually referred to as the Metro car. The other vehicle, owned and then being operated by defendant, was traveling in a southerly direction, toward Beckley. One passenger was riding with defendant.

The accident occurred near the top of a hill, a distance of approximately forty or fifty feet from the top, after the defendant's car had crossed the hill and descended that distance. A heavy snow was falling at the time, interfering greatly with visibility. The road was covered with snow and was very slippery. It is not disputed that one automobile, in front of the Metro car, had stalled because of the slippery condition of the road, causing the Metro car to come to a stop just behind it. The infant plaintiff and two other passengers of the Metro car assisted in pushing the stalled car to the top of the hill, and had returned to the Metro car and were attempting to push it up the hill when the infant plaintiff was struck by the defendant's car.

There exists a conflict in the evidence as to the position of the infant plaintiff at the time he was struck. His evidence is to the effect that at that time he was immediately to the rear of the left rear fender of the Metro car, pushing, or just ready to begin pushing, the Metro car. The evidence of defendant is to the effect that the infant plaintiff was to the left of the Metro car, with his body extending beyond the left of the center of the highway, or in the path of the defendant's car. Defendant's evidence is to the effect that he did not see the infant plaintiff until he emerged from the rear, or from a point near, the Metro car, into the path of defendant's car, three or four feet before the point at which he was struck, too late for defendant to have avoided striking him. To some extent, at least, defendant's testimony in this respect is corroborated by the witness who was a passenger in defendant's car.

Defendant also strongly contended, and some evidence would tend to support the contention, that the Metro car was to its left of the center of the highway, making it necessary for the defendant to drive his own car onto the berm in order to avoid a collision with the Metro car, and that in doing so his own car was unavoidably caused to skid, resulting in the collision. The evidence of the plaintiffs, however, strongly indicates that the Metro car was on its right side of the highway and that it was not at an angle across the highway, as contended by defendant.

On further cross-examination, the infant plaintiff was asked certain questions, and made answers thereto, as follows: 'Q. * * * which way were you looking as you stood back there half way behind the car and half way out? A. Well, I must have had my head down because I wasn't looking straight ahead. Q. You wasn't looking straight ahead of you? A. No, sir, if I had, I could have seen Mr. Smith coming. Q. But you weren't looking straight ahead? A. No. Q. And you didn't see him coming? A. No. Q. Now, if you had seen him coming, you could have stepped back behind the car and been safe? A. Yes. Q. You didn't make any attempt to get back behind the car did you? A. As soon as I looked up, there he was. I didn't have a chance to say scat. Q. How close to you was the Smith car when you first saw it? A. I guess it was about two or three feet maybe. Q. Two or three feet? A. Yes, sir. Q. Now, if you had been looking you could have seen it as it first came over the top of the hill, couldn't you? A. Yes.'

It is vigorously contended by defendant that the testimony of the infant plaintiff just quoted establishes, as a matter of law, that he was contributorily negligent, that such negligence contributed proximately to the injuries, and that the trial court should have instructed the jury to find for defendant. We are of the opinion, however, that the question of contributory negligence of the infant plaintiff was one for the jury.

In Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217, we held: '3. 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.'

Though the testimony of the infant plaintiff could have served as the basis for a finding of contributory negligence, the jury was entitled to consider the other evidence, especially that relating to the weather and road conditions, the position of the Metro car, the position of the infant plaintiff at or near the time of the accident, and the necessity for the efforts in the attempt to move the Metro car up the hill. If the jury believed, as they had a right to do, that the Metro car and the Metro boy, at the time of the accident, were entirely to their right of the center of the highway, they would be justified in finding that the boy was not negligent, though the facts testified to by him were true. Clearly, reasonable minds might differ as to whether all of the facts, in the circumstances of the particular case, indicated that the infant plaintiff was using ordinary care in attempting to push the Metro car. Most certainly, 'reasonable men may draw different conclusions' as to the effect of such facts, or even as to the facts admitted by the infant plaintiff, in the circumstances of the instant case. See Isgan v. Jenkins, 134 W.Va. 400, 59 S.E.2d 689; Davis v. Pugh, 133 W.Va. 569, 57 S.E.2d 9; Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410.

The only other error assigned as ground for reversal of the judgments complained of relates to the action of the trial court in giving plaintiffs' Instructions A, B and D. The complaint as to each instruction relates to the same principle, and is based on language found in Instruction A, or language to the same ffect in Instructions B and D. Instruction A told the jury that if the '* * * conduct on the part of the defendant contributed proximately to the Metro boy's injuries, then you may find in favor of plaintiff against defendant in each action, unless you further believe that the Metro boy, at the time of the accident, was not using due care in his own behalf.' (Emphasis supplied.)

The contention is made that the language quoted permits the jury to find for the plaintiffs even though the negligence of the infant plaintiff contributed proximately to the cause of the injury, and reliance is had on the holding in Johnson v. Majestic Steam Laundry, 114 W.Va. 352, 171 S.E. 902. There we held: '2. An instruction which in effect tells the jury that if they believe from a preponderance of the evidence that the negligence of defendant contributed to the accident causing injury they may find for plaintiff is prejudicially erroneous.' The instruction there considered actually told the jury that if they believed that the defendant '* * * did not keep said automobile then and there being driven by him as far to the right on said highway as was reasonably possible, and that his failure to do so was the cause of the accident, or contributed to the accident in question, it is your duty to find for the plaintiff, unless you shall further believe that the defendant in said meeting did not keep his automobile to his right on the highway as far as was reasonably possible, or was guilty of other contributory negligence.' In the opinion the Court stated: 'This instruction tells the jury that they may find for the plaintiff if the negligence of the defendant conbributed to the accident, unless they further believe that the...