Perry v. Scott

• Decision Date: 16 May 1950
• Docket Number: No. 10240,10240
• Citation: 59 S.E.2d 652,134 W.Va. 380
• Parties: PERRY, v. SCOTT.
• Court: West Virginia Supreme Court

Page 652

59 S.E.2d 652

134 W.Va. 380

PERRY, v. SCOTT.

No. 10240.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1950.

Decided May 16, 1950.

Syllabus by the Court.

'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.' Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767.

D. L. Salisbury, H. D. Rollins, Charleston, P. W. Hendricks, Madison, for plaintiff in error.

Steptoe & Johnson, Charleston, Harry G. Shaffer, Madison, Wilson Anderson, Charles W. Yeager, Charleston, for defendant in error.

GIVEN, Judge.

This action of trespass on the case was instituted in the Circuit Court of Boone County for recovery of damages for personal injuries suffered by the plaintiff as the result of being struck by an automobile being driven by the defendant. The trial court, over objections of the defendant, permitted the case to go to the jury. The jury, having failed to agree after about three hours of deliberation, was recalled by the court and, upon renewal of defendant's motion, directed to return a verdict for the defendant. This Court granted a writ of error and supersedeas to the judgment entered upon that verdict.

The accident occurred on the 27th day of November, 1948, at about 8:45 o'clock P. M., at a point on the public highway leading through Madison, designated U. S. Route 119. The paved portion of the highway at that point is thirty feet wide, from curb to curb, and runs in a general direction of north to south. There is a paved sidewalk along the western side of the highway but only a direct walkway or path along the easterly side thereof. Main Street extends through Madison, runs almost parallel with the highway, and at a much lower level. Stone steps lead at a Main Street up to the sidewalk along the western side of the highway, intersecting the sidewalk a short distance south of the point where plaintiff was injured. A public paved road known as the Pond Fork Road intersects the highway from the easterly side thereof and south of the point where the stone steps intersect sidewalk, about 300 feet south of the point of the accident. Approximately 300 feet north of the point where plaintiff was injured Leftwich Street crosses the highway at right angles. There was a traffic light in operation at this intersection at the time of the accident. The jury viewed the scene of the accident.

The plaintiff, about fifty years of age, an employee of A. W. Cox Department Store, located on Main Street, left her place of employment at about 8:30 o'clock, P.M., made a purchase of groceries at a nearby store, and ascended the stone steps to the sidewalk along the westerly side to the highway on her way home. Her home was located on Leftwich Street easterly from the highway. Upon reaching the sidewalk she turned left and traveled on the sidewalk northerly a short distance, then started across the highway. She was struck by a car being driven by the defendant at or near the easterly curb of the highway and suffered a compound fracture of both bones of the left leg, about midway between the ankle and the knee, and suffered other lesser injuries. She was immediately removed to a hospital and given the usual treatment for such injuries. She remained in the hospital for about forty-seven days. At the time of trial it appeared that recovery was not complete and that a bone graft operation might become advisable.

A short time prior to the injury the defendant entered the highway from the east, from the Pond Fork Road, and proceeded north on the highway. It was dark and had been raining that day, but the highway 'was dry at the time', except that dirt from a nearby excavation had washed onto the highway, causing a muddy condition at the point of the accident. The evidence does not show how far this muddy condition extended out into the highway nor the distance it extended along the highway. The defendant testified that he was driving a Chevrolet automobile with four wheel brakes and that the brakes were in good mechanical condition. His headlights were burning on low beam and he could have seen a person at a distance of approximately 150 feet. There was a street light burning just south of the point where the stone steps intersected the sidewalk. The highway from a point some distance south of the place of the accident to a point some distance north thereof has a down grade, but the degree is not shown. Curvature of the highway near the point of the accident is not shown.

The defendant says that the action of the trial court in directing the jury to return a verdict in his favor was proper for the reason that the plaintiff failed to prove any negligence on the part of the defendant, and for the further reason that if the defendant was negligent the plaintiff herself was guilty of contributory negligence as a matter of law. Therefore it is necessary that the Court consider in detail the evidence relating to negligence.

The plaintiff testified to the effect that at the time she left the sidewalk to cross the highway automobiles were parked along the sidewalk paralled thereto; that she walked between two of the parked automobiles and stopped at the outer edge thereof and observed passing traffic until the way appeared clear and safe for her to cross; that when the way appeared clear and safe she started to cross; that just before starting across she saw a car coming from the north but some distance away, and also saw a car approaching from the south about 300 feet away from where she was standing, this apparently being the car of defendant, and that she walked across the highway 'to the curb, turned, and prepared to step upon the curb stone, * * * and I was struck in the back by the car, * * *.' On cross-examination she testified that she '* * * might not have been right up to the curb. I came straight across and then made the turn, and, as I said before, I might have made a step or two before I stepped up on the curb. Q. You mean a step or two down the hill? A. Yes, sir. As I said before, I might have made a step or two before I stepped up after I crossed.'

Other witnesses corroborated plaintiff as to her testimony in regard to stopping and watching passing traffic before attempting to cross the highway. Three witnesses who resided near the point of the...