Moorefield v. Lewis

• Decision Date: 01 April 1924
• Citation: 96 W.Va. 112
• Court: West Virginia Supreme Court
• Parties: W. B. Moorefield, Admr. Etc., v. W. M. Lewis

96 W.Va. 112

W. B. Moorefield, Admr. Etc.,

v.W. M. Lewis

Supreme Court of Appeals of West Virginia.

Submitted March 25, 1924.

Decided April 1, 1924.

1. Verdict. Special Finding of Act of Negligence of Defendant in Action for Negligence Not Inconsistent When Sustained by Evidence Sufficient to 'Support General Verdict.

In an action for negligence, a special finding, sustained by the evidence, of an act of negligence by the defendant, sufficient to support the general verdict against him, is not inconsistent therewith. (p. 114).

2. Teial Evidence. Errors in Rulings on Deemed Waived if Not Made Grounds of Motion for New Trial or Subject of Special Bills of Exception.

Errors in the rulings of the trial court upon admission and rejection of evidence are deemed to have been waived if not made grounds of motion for a new trial, or the subject of special bills of exception, showing the evidence and the rulings of the court thereon.(p. 114).

3. Same. Improper Remarks of Counsel Not Cause for Reversal if Jury Properly Instructed to Disregard Them and Court Unable to See Substantial Prejudice.

Improper remarks by counsel during the trial and in the presence of the jury are not cause for reversal if the jury are properly instructed to disregard them and the court is unable to see that substantial prejudice resulted. (p.. 115).

4. Motor Vehicles. Driver of Must Exercise Reasonable Care in Operation Thereof Both as to Other Travelers and Passengers in Machine.

The driver of a motor vehicle is under the obligation of exercising reasonable care, not only for the safety of pedestrians and other travelers, but also for the safe transportation of his guests or other passenger in the machine.(p.. 116).

McGinnis, Judge, absent.

Error to Circuit Court, Wyoming County.

Action by W. E. Moorefield, administrator, etc-, against W. M. Lewis. Judgment for plaintiff, and defendant brings error.

Affirmed.

Grover C. Worrell and John B. Pendleton, for defendant in error.

Fitzpatrick, Brown & Davis, and 0. W. Strickling, for plaintiff in error.

Litz, Judge:

The plaintiff by action on the case recovered judgment against defendant in the sum of $5000.00 for the death of his decedent, Miss Sallie Porter, due to the alleged negligence of defendant. To that judgment defendant prosecutes this writ.

On the evening of August 23d, 1922, between seven and eight o'clock, the defendant left the town of Mullens, where he resided, in his five passenger Essex automobile for a pleasure drive over a recently constructed road, extending from Mullens for a distance of three or four miles. He was accompanied by a gentleman friend, Mr. Bean, and four young ladies, including the decedent and Miss Lucille Johnson. The defendant, sitting on the left in the front seat, drove the ear. Miss Johnson and Miss Porter sat on the seat with him, the former being in the center. Mr. Bean and the other two young ladies occupied the rear seat. The road, attended with many curves and steep embankments, led up a mountain gorge of Guyandotte river. It terminated abruptly at the river bank, where the ground dropped perpendicularly twenty-five feet to the water. A, proposed bridge to carry the road across the river at that point had not been constructed. No barriers or signs stood to warn travelers on the way. It was shown by plaintiff's evidence, however, that the situation of danger could have been observed by those using the highway for a distance of 250 or 300 feet.

The defendant had traveled the road before within a mile of its terminus at the river bank, but had been no further. He knew it had not been completed to a connecting road. The car was traveling from twenty to thirty miles per hour, and was within about 25 feet of the brink when defendant says he first discovered it. He immediately disconnected the power and applied the foot brake while Miss Johnson set the emergency brake. The car, however, could not be stopped and, reversing ends, it fell into the water, causing the death of Miss Porter and injury to others of the party.

The assignments of error will be considered in the following order:

(1) The plaintiff was permitted to introduce evidence by two witnesses for the purpose of showing the distance at which the point of accident could have been seen by approaching travelers. This evidence is excepted to on the ground that the questions propounded to the witnesses do not embody the essential facts proven in that relation, and especially in failing to take into consideration the fact that the accident occurred after dark. The preponderance of the evidence is to the effect that it was not dark but dusk at the time. Besides, the testimony of one of the two witnesses assumes that the accident occurred at a time when the use of the head lights of the machine was necessary. Moreover, this exception cannot be considered. It was neither a ground of the motion for a new trial, nor the subject of special bills of exception. Guyandotte Coal Co. v. Virginia Electric & Machinery Works, 94 W. Va. 300, 118 S. E. 512.

(2) Defendant asserts that the verdict should have been set aside because of a special finding by the jury inconsistent with its general verdict.

At the defendant's instance the following special interrogatory was submitted to the jury: "If you find for the plaintiff, of what acts of negligence was the defendant, Lewis, guilty?'' The jury answered this interrogatory by saying: "Failure to observe the road ahead as he should in front of him."

It is argued that the evidence not only fails to support the special finding but conclusively shows the defendant to have kept a careful lookout. How can this be, notwithstanding defendant's statement that he looked ahead, when it is shown the embankment could have been...