Morrison v. Roush S., (No. 6943)

• Decision Date: 28 April 1931
• Docket Number: (No. 6943)
• Citation: 110 W.Va. 398
• Court: West Virginia Supreme Court
• Parties: Frank L. Morrison v. Fred Roush et als.

110 W.Va. 398

Frank L. Morrison

v.Fred Roush et als.

(No. 6943)

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1931.

Decided April 28, 1931.

1. Negligence

"It is only when the facts which control are not disputed, and are such that reasonable minds can draw but one conclusion from them, that the question of contributory negligence barring recovery becomes one of law for the court." Coleman v. Ry. Co., 100 W. Va. 679.

2. Appeal and Error Trial

"An instruction embodying an abstract proposition of law, without in any way connecting it with the evidence or indicating what facts the jury must find from the evidence, in order to make it applicable to the case, ought not to be given; and, if the court can see that such an instruction has confused or misled the jury, the judgment resulting from the verdict will be reversed." Parker v. Building & Loan Assn., 55 W. Va. 134.

3. Trial

Instructions to the jury should be accurate and the law correctly laid down with reference to the facts which the evidence tends to prove, and not in the abstract.

4. Same

While the giving of abstract instructions is not always reversible error, the better practice is not to give them.

5. Automobiles

An instruction which is incomplete and indefinite in its meaning should not be given.

6. Negligence

Liability of a person for injury to another cannot be predicated on negligence unless there has been on the part of the person sought to be charged some omission or act of commission in breach of duty to the person injured.

7. New Trial

Statements, under oath.or otherwise, made by jurors after verdict, with a view of disturbing or impeaching their verdict, are properly viewed by the courts with great disfavor. Ordinarily such matters should be given no consideration.

Error to Circuit Court, Cabell County.

Action by Frank L. Morrison against Fred Roush and others. To review a judgment for the plaintiff, the defendants, other than Leo Volkenrath, bring error.

Reversed and remanded.

Scott, Graham & Wiswell, for plaintiffs in error. T. W. Peyton, for defendant in error.

Maxwell, Judge:

For personal injuries received in an automobile accident in the City of Huntington on the 26th of May, 1930, Frank L. Morrison obtained a verdict and judgment for $3,000.00 against Frank Roush, Grant Roush and Leo Volkenrath. The Roushes prosecute this writ of error.

Morrison and a companion were sitting on the outer running board of a car parked parallel to and against the south curb of Third Avenue in said city, awaiting the arrival of a bus. Where they were sitting was exactly opposite a street car safety zone, marked on the surface of the street by metal disks, for the protection of passengers using east bound cars. The distance from the south curb to the zone boundary was eighteen feet. The automobile upon which they were sitting was approximately six feet in width, leaving a space of about twelve feet between it and the safety zone. They had been there about five minutes when Fred Roush, driving a light truck belonging to Grant Roush, approached from the west. As the truck neared them at a moderate speed, Leo Volkenrath, driving a passenger automobile and coming up in the rear of the truck, attempted to pass it on the left, and, to avoid running through the safety zone where two people were standing, having alighted from a street car which had just stopped, he cut his automobile sharply to the right before it had entirely passed the truck. This resulted in the rear right bumper of Volkenrath's automobile becoming interlocked with the left end of the front bumper of the truck, thereby throwing the truck over and against the automobile where Morrison and his companion were sitting. M'orrison was seriously injured; his companion escaped unharmed.

It is true that Morrison in sitting on the running board of the parked automobile was violating section 99, chapter 43, Code 1923, which makes trespassing upon the vehicle of another a misdemeanor. Clearly this statute was intended for the protection of private property and is in no sense a traffic regulation. The violation of that statute by Morrison at the moment of the injury does not bear on the question of contributory negligence. The fact that Morrison had stationed himself six feet from the curb in a busy street might be considered contributory negligence, but the fact that he was sitting on the running board of another person's car, in violation of the above statute, cannot in itself be said to have constituted contributory negligence. We are, therefore, of opinion that the court properly refused Roush instruction No. 4 which would have told the jury that the action of the plaintiff in sitting upon the running board of the automobile without the consent of the owner was illegal "and if by so doing he placed himself in a postion of danger or hazard from passing automobiles and was injured by a car running on the Avenue, he cannot recover in this action."

The first point of error, in order of assignment, goes to the action of the trial court in overruling the demurrer of the Roushes to the fourth count of the declaration. The demurrer as to that count is predicated particularly upon the allegation therein that at the time he was hurt "plaintiff was sitting on the running board of a certain automobile, the same being then and there lawfully parked beside the south curb on Third Avenue." It is said that that allegation in itself discloses contributory negligence on the part of the plaintiff. If the court could say that this fact was such that reasonable minds could draw therefrom only the conclusion that such conduct was inherently negligent, the demurrer should have been sustained, otherwise not. Roush instruction No. 3, refused, (another point of error) would have required the court to tell the jury as a matter of law that the plaintiff's conduct was negligent. The same legal proposition thus being presented by both the demurrer and the said instruction, the two will be considered together. In our opinion the demurrer was properly overruled and the said instruction was properly refused. From the situation presented the court would not be warranted in saying in effect that reasonable minds could not differ on the subject of whether the plaintiff was guilty of contributory negligence in stationing himself at the point where he was at the time he was hurt. "It is only when the facts which control are not disputed, and are such that reasonable minds can draw but one conclusion from them, that the question of contributory negligence barring recovery be- comes one of law for the court." Coleman v. Railway Co., 100 W. Va. 679. In agreement: McKinney v. Railway Co., 105 \Y. Va. 319; Krodel v. Railway Co., 99 W. Va. 374; Shriver v. County Court, 66 W. Va. 685, 693; 45 Corpus Juris, page 1304; 1 Sherman & Redfield on Negligence, (6th Ed.), sec. 55. Under the latter authority, the question of contributory negligence "is to be submitted to the jury, under proper instructions, unless it is entirely free from doubt." That question was a proper one for jury consideration in this case.

The giving of plaintiff's instructions 4, 5 and 6 over the objection of the Roushes is assigned by them as error. Instruction No. 4 reads:

"The court further instructs the jury that a person lawfully in a public highway may rely upon the exercise of reasonable care by drivers of automobiles to avoid injury and failure to anticipate omission of such care does not constitute contributory negligence, and a...