Muldoon v. Kepner

• Decision Date: 13 March 1956
• Docket Number: No. 10754,10754
• Citation: 91 S.E.2d 727,141 W.Va. 577
• Court: West Virginia Supreme Court
• Parties: Wanda Lee MULDOON v. Wade H. KEPNER, Doing Business as Kepner Funeral Home.

Page 727

91 S.E.2d 727

141 W.Va. 577

Wanda Lee MULDOON v. Wade H. KEPNER, Doing Business as Kepner Funeral Home.

No. 10754.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1956.

Decided March 13, 1956.

Syllabus by the Court.

1. A judgment based on the verdict of a jury will be reversed on writ of error to this Court when the verdict is without sufficient evidence to support it, or is plainly against the clear preponderance of the evidence.

2. The liability of tort-feasors is both joint and several, and where a person is injured as the result of the concurrent wrongdoing of several joint tort-feasors, the injured person may proceed against any or all of the joint tort-feasors in an action at law to recover damages for his alleged injuries.

3. On writ of error to the judgment of a trial court, this Court, upon reversing the judgment of the trial court, setting aside the verdict of the jury and granting a new trial, will not decide questions which will be moot upon a retrial of the case.

Carl G. Bachmann, Gilbert S. Bachmann, Wheeling, for plaintiff in error.

Goodwin, Spillers & Mead, Russell B. Goodwin, C. Lee Spillers, Wheeling, for defendant in error.

RILEY, Judge.

In this action of trespass on the case, instituted by the plaintiff, Wanda Lee Muldoon, in the Circuit Court of Ohio County, against Wade H. Kepner, doing business as Kepner Funeral Home, to recover damages for personal injuries allegedly resulting to the plaintiff while riding as a guest-passenger in the defendant's ambulance, which resulted from a collision between the ambulance and an automobile owned and being driven by Louis Laudermilt in the opposite direction from which the ambulance was travelling, the plaintiff prosecutes this writ of error to a judgment of the circuit court in defendant's favor, based upon a jury verdict.

The collision between the two vehicles occurred on March 7, 1953, on United States Route No. 40, within the corporate limits of the City of Wheeling, a short distance west of a bridge, commonly known as the 'S' bridge. At the time of the collision, approximately 11 o'clock on Saturday night, March 7, 1953, there was a heavy snow storm, which resulted in covering with snow Route No. 40, along which defendant's ambulance was proceeding in a westerly direction to the North Wheeling Hospital, located in the City of Wheeling proper. The falling and fallen snow rendered driving conditions difficult, in particular at the place of the collision the marked lanes on Route No. 40 for traffic going east and west having been obliterated by the fallen snow.

As the judgment of the circuit court in favor of defendant was based upon a verdict of the jury, it is the duty of this Court to determine whether the verdict of the jury is without sufficient evidence to support it, or is plainly against the clear preponderance of the evidence. If it is, the judgment of the circuit court should be reversed, the verdict set aside and a new trial awarded. Pt. 4, syl., Rees Electric Co. v. Mullens Smokeless Coal Co., W.Va., 89 S.E.2d 619; pt. 11, syl., Toppins v. Oshel, W.Va., 89 S.E.2d 359; Ward v. Smith, W.Va., 86 S.E.2d 539; Kap-Tex v. Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Co., 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Co., 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter, Frazier & Co., 68 W.Va. 223, 69 S.E. 794; Coalmer v. Barrett, 61 W.Va. 237, 56 S.E. 385; Chapman v. Liverpool Salt & Coal Co., 57 W.Va. 395, 50 S.E. 601.

In this regard it is the duty of this Court to consider all of the credible evidence introduced on behalf of the plaintiff and the defendant, and determine whether, as a matter of law, the trial court should have directed a verdict in favor of the plaintiff and proceeded with the trial on an inquiry for damages.

Initially, the question arises whether the defendant's ambulance, in which plaintiff was riding as a guest-passenger, was an 'emergency vehicle', so that it could be operated by defendant's driver in a manner different from other motor vehicles.

Over the objection and exception of the plaintiff and plaintiff's motion to exclude, certain provisions of an ordinance of the City of Wheeling, contained in the Code of the City of Wheeling, relating to the designation of certain vehicles as 'emergency vehicles', and providing for the operation thereof as such, were read to the jury.

The Code of the City of Wheeling, Chapter 20, Section 68, entitled: 'Operation of Vehicles or Approach of Authorized Emergency Vehicles', provides: 'Upon the approach of any authorized emergency vehicle giving automobile signal by bell, siren or exhaust whistle, the operator of every other vehicle shall immediately allow the right of way to said vehicle and drive his vehicle to a position as near as possible and parallel to the right hand edge or curb or the street (other than on one way street) clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle shall have passed, unless otherwise directed by a police officer.'

The Code of the City of Wheeling, Chapter 20, Section 1(b), entitled: 'Authorized Emergency Vehicles', provides: 'Vehicles of the Fire Department, Police Department, and such ambulances and other vehicles of municipal departments or public service corporations and individuals operating privately owned ambulances, as are designated or authorized by the City Manager.'

Section 8 of Chapter 20 of the Code of the City of Wheeling, entitled: 'Exemptions as to Authorizing Emergency Vehicles', provides: 'The provisions of this chapter regulating the movement, parking and standing of vehicles shall not apply to authorized emergency vehicles as defined in this chapter while the driver of such vehicle is operating same in an emergency. This exemption shall not, however, protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others.'

After both plaintiff and defendant had rested their cases without counsel for defendant producing and offering in evidence a permit signed by the City Manager of the City of Wheeling, designating or authorizing defendant's ambulance as an authorized emergency vehicle under the ordinance, as provided by Chapter 20, Section 1(b) of the Code of the City of Wheeling, and immediately before counsel for the plaintiff and defendant had made their closing arguments, the trial court, theretofore having given a general charge to the jury in lieu of instructions, orally instructed the jury to disregard the testimony of August L. Dailer, Clerk of the City of Wheeling, in regard to the provision of the ordinance 'which requires other cars to stop or drive to the curb when an emergency vehicle approaches. * * * because the permit from the City Manager was not shown.' To this counsel for the defendant saved an exception.

Over plaintiff's objection, the court admitted a paper on a form provided by the Commissioner of Motor Vehicles of West Virginia, which embraced the application of defendant for designation of his ambulance as an emergency vehicle, under Chapter 17C, Article 1, Section 6, of Chapter 129, Acts of the Legislature, Regular Session, 1951, approved by the Chief of Police of the City of Wheeling, and to be operated as provided in Section 5, Article 2, of said Chapter 17C. Section 6, Article 1, of Chapter 17C, provides: 'Vehicles of the fire department, police vehicles, and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorized by the commissioner or the chief of police of an incorporated city, and such privately owned ambulances and emergency vehicles as are designated by the commissioner.' Section 5, Article 2, of Chapter 17C, provides, in part:

'(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

'(b) The driver of an authorized emergency vehicle may:

'(1) Park or stand, irrespective of the provisions of this chapter;

'(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

'(3) Exceed the speed limits so long as he does not endanger life or property;

'(4) Disregard regulations governing direction of movement of turning in specified directions.

* * *

* * *

'(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.'

As the defendant did not produce and offer in evidence a permit signed by the City Manager of the City of Wheeling, as provided by the Code of the City of Wheeling, Chapter 20, Section 1(b), designating defendant's ambulance as an authorized emergency vehicle, the ordinance was properly excluded by the trial court from the consideration of the jury, the provisions of Section 68 of the ordinance, requiring other vehicles to yield the right of way to an ambulance upon its approach, 'giving automobile signal by bell, siren, or exhaust whistle', do not enter into the decision of this case.

Inasmuch as this case was tried on the theory that defendant's driver, though he was driving the ambulance at a moderate rate of speed, was, nevertheless, negligent in driving the ambulance on the wrong side of Route No. 40, past an automobile travelling in the same direction, subsection (b), Section 5, Article 2, Chapter 17C of Chapter 129, Acts of the Legislature, Regular Session, 1951, providing that vehicles authorized by the Commissioner...