Overton v. Fields
| Decision Date | 20 December 1960 |
| Docket Number | No. 12006,12006 |
| Citation | 117 S.E.2d 598,145 W.Va. 797 |
| Court | West Virginia Supreme Court |
| Parties | Clement L. OVERTON v. Jack L. FIELDS. |
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.
2. It is
the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses regarding them is conflicting; and the finding of the jury on such facts will not ordinarily be disturbed by this Court.
3. When a case involving conflicting testimony and circumstances upon the questions of negligence and contributory negligence has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it.
4. When the opinion of a witness, not an expert, is offered in evidence, and he is no better qualified than the jurors to form an opinion with reference to the facts in evidence and the deductions to be properly drawn from such facts, his opinion evidence is not admissible.
5. Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.
6. Under Section 3(a), Article 7, Chapter 17C, Code, 1931, as amended, the driver of a vehicle overtaking another vehicle proceeding in the same direction on a public highway is required to give an audible signal and, in passing to the left of such vehicle, at a safe distance and in not again driving to the right of the highway until safely clear of the overtaken vehicle, to exercise the care of an ordinary prudent person in the attendant circumstances.
7. An instruction which incorrectly states the law is erroneous and should be refused.
8. An instruction which tends to mislead the jury is erroneous and should be refused.
9. Point 1, syllabus, Haffner v. Cross, 116 W.Va. 562 , is overruled.
10. An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not injured by the giving of such instruction.
11. An instruction which correctly states principles of law but which contains a statement which is not based on the evidence is erroneous and should be refused.
McCluer, Davis, McDougle, Stealey & Morris, Robert B. McDougle, Fred L. Davis, Eugene T. Hague, Parkersburg, for plaintiff in error.
Walter T. Crofton, Jr., Daniel A. Ruley, Jr., Wm. Bruce Hoff, Parkersburg, for defendant in error.
This action of trespass on the case was instituted in the Circuit Court of Wood County in 1958. The plaintiff, Clement L. Overton, seeks to recovery from the defendant, Jack L. Fields, for permanent personal injuries caused by the alleged negligence of the defendant in a wreck of a 1957 Ford two door sedan automobile owned and operated by the defendant in which the plaintiff was a guest passenger about ten o'clock on Saturday morning, April 6, 1957. The plaintiff and the defendant were seriously injured and the wife of the defendant was killed when the automobile, after being driven off U. S. Route No. 21 on which it was traveling in a southerly direction, crossed an open field east of the highway and came to a stop in a deep ravine about eight miles south of Parkersburg, in Wood County, West Virginia.
Upon the second trial, following a jury disagreement at the first trial, the jury returned a verdict for $30,000.00. After denying motions by the defendant to direct a verdict for the defendant and to set aside the verdict and award a new trial, the circuit court, on April 21, 1959, entered judgment for the plaintiff for the amount of the verdict with interest and costs. To that judgment this Court granted this writ of error and supersedeas on December 7, 1959.
The accident in which the plaintiff was severely and permanently injured occurred on a section of the highway which extends in a southerly direction and is practically straight for a distance of 1200 feet north of a ravine located east of the highway. The ravine leads to a culvert which passes beneath the surface of the highway near the residence of Samuel Reeder who died before the trial of this case. About two or three miles north of the scene of the wreck are two gasoline filling stations, one on each side of the road, near a place known as Province Grove. The paved portion of the highway is twenty four feet in width and is located on a slight grade to the south. The berm on each side of the highway is approximately nine feet in width, except at a point about 300 feet north of the ravine where the width of the berm on the eastern side of the road becomes wider and adjoins an open practically level field which extends south from that point for a distance of approximately 250 feet to the north bank of the ravine. The distance between the top of the north bank and the top of the south bank of the ravine is about fifty feet. The elevation of the field at the foot of the north bank of the ravine is approximately three feet below the level of the highway. From the culvert the highway is practically straight for an additional distance of 1000 feet to the south.
The plaintiff and the defendant had been close friends for sometime before the accident and had traveled together on automobile trips. Pursuant to a previous arrangement the plaintiff came to the home of the defendant and his wife about nine o'clock on the morning of the accident to accompany them on an automobile trip from Parkersburg to Charleston to attend a high school athletic contest in which the son of the defendant was to participate in Charleston. On the trip from Parkersburg to the point of the wreck the defendant was the driver, the plaintiff occupied the right front seat, and the wife of the defendant occupied the rear seat of the automobile.
At some point south of Province Grove the defendant sighted in front of him two motor vehicles, both of which were traveling south in the right lane of the highway. One of them was a two colored blue and white Plymouth sedan driven by Wayne Sheppard, who was accompanied by his wife, and the other, in front of the automobile driven by Sheppard, was a Ford pickup truck occupied by a man and a woman and was driven by the man. The identity of the occupants of the truck was never determined by any of the parties and neither of them testified at either trial of the case.
About a mile and a half south of Province Grove the defendant overtook and passed an automobile driven by a man named Buchanan and that automobile continued to follow the automobile driven by the defendant until both of them reached the scene of the accident. Immediately before the accident there was no north bound vehicular traffic in sight and the four designated vehicles were traveling south in the straight stretch of the highway north of the culvert at varying distances from each other of fifty to one hundred yards at speeds estimated by witnesses of thirty five to fifty miles per hour. The pickup truck was ahead of the automobile driven by Sheppard and those vehicles were traveling in that order in front of the automobile of the defendant. The automobile driven by Buchanan, who was the only eyewitness other than the plaintiff and the defendant, was following the automobile of the defendant at an estimated distance of from fifty to one hundred yards. When the defendant first sighted the pickup truck and the automobile driven by Sheppard in the vicinity of Province Grove the defendant decided to pass those two vehicles as soon as an opportunity to do so should occur.
Near the north end of the straight stretch of the highway the defendant attempted to pass the automobile driven by Sheppard but when the automobile of the defendant came to the rear fender of the automobile driven by Sheppard that automobile turned to the left to pass the truck and instead of continuing to the left the automobile driven by Sheppard and the automobile driven by the defendant turned back in line behind the truck. This unsuccessful effort of the defendant to pass the automobile ahead of him apparently occurred about 850 feet north of the ravine. After the automobile driven by the defendant had continued to travel according to some of the witnesses to a point approximately 175 feet north of the ravine the defendant again attempted to pass the automobile driven by Sheppard.
The testimony of the defendant was that when his automobile was three or four car lengths behind the automobile driven by Sheppard the defendant sounded the horn of his automobile and pulled to the left to pass the automobile driven by Sheppard but that when his automobile had reached a point 'beside the Sheppard car' that car suddenly swerved into the left lane ahead of the automobile of the defendant and that the defendant, 'to avoid hitting him or him hitting me', jerked his automobile to the left. The evidence shows that when that occurred the automobile of the defendant ran off the berm of the highway and continued across the field to and over the top of the north bank of the ravine and came to rest with its front end about two feet from the top of the south bank of the ravine.
After the automobile had come to a stop the defendant was removed from the car and placed on the north bank of the ravine. The plaintiff who was unconscious was also removed from the automobile and taken to a hospital where he later regained consciousness. The wife of the defendant who was killed outright or fatally injured was also removed from the automobile.
Almost immediately after the wreck Buchanan left the wrecked automobile and summoned an ambulance and...
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