Poe v. Pittman

• Decision Date: 02 November 1965
• Docket Number: No. 12385,12385
• Citation: 150 W.Va. 179,144 S.E.2d 671
• Court: West Virginia Supreme Court
• Parties: Forrest POE v. Key Franklin PITTMAN et al.

Page 671

144 S.E.2d 671

150 W.Va. 179

Forrest POE v. Key Franklin PITTMAN et al.

No. 12385.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1965.

Decided Nov. 2, 1965.

Syllabus by the Court

1. In a personal injury action, issues involving primary negligence on the part of the defendants, contributory negligence on the part of the plaintiff, due care and proximate cause are proper for determination by the jury when the evidence pertaining to such issues is conflicting, involving credibility of witnesses, or where the evidence, though undisputed or without conflict, is such that reasonable men may properly draw different conclusions from it.

2. In an action to recover damages for personal injuries arising from an accident involving the operation of motor vehicles on a public highway, a party to such action will not be permitted to rely on the sudden emergency doctrine if his own negligence has created, in whole or in part, the situation which is alleged by him to have created a sudden emergency.

3. A person in a sudden emergency, not created in whole or in part by his own negligence, who acts according to his best judgment or who, because of insufficient time for reflection, fails to act in the most judicious manner, is not guilty of negligence if he exercises the degree of care which would be exercised by a reasonably prudent person in like circumstances.

4. In a civil action in which a party relies on the sudden emergency doctrine and in which the evidence concerning that issue is conflicting or where such evidence, though undisputed, is such that different inferences reasonably may be drawn therefrom, it is for the jury to determine whether such party was confronted with a sudden emergency, the nature and extent of the emergency, whether the emergency was created in whole or in part by the party relying upon it in justification of his conduct and whether he in the emergency conducted himself as a reasonably prudent person would have conducted himself in the same or like circumstances.

5. 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Point 3 Syllabus, Walker v. Monongahela Power Co., 147 W.Va. 825 .

6. A jury verdict based on conflicting testimony, involving the credibility of witnesses and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.

7. 'In an action wherein the compensation which the plaintiff is entitled to recover is indeterminate in character, the verdict of the jury may not be set aside as excessive unless it is not supported by evidence or is so large that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.' Point 4 Syllabus, Browder v. County Court of Webster County, 145 W.Va. 696 .

8. In an action to recover damages sustained in an accident involving the operation of motor vehicles upon a public highway, the question whether testimony as to the speed of one of the vehicles at some point on the highway before it reached the scene of the accident should be admitted is left to the sound discretion of the trial court. If such testimony is admitted, the element of remoteness in time and distance is proper for the jury's consideration in determining the weight which should be given to such evidence; and the action of the trial court in admitting such testimony will not be regarded by this Court as reversible error unless it clearly appears that, in admitting such testimony, the trial court abused its discretion.

Hyer, Gibson & Talbott, Elkins, for appellee.

Steptoe & Johnson, Kingsley R. Smith, Clarksburg, for appellants.

CALHOUN, Judge:

This case is before the Court on appeal from a final judgment of the Circuit Court of Randolph County entered on a jury verdict for the plaintiff, Forrest Poe, against Key Franklin Pittman and A. D. Pittman, defendants. The case arose from a collision of a 1961 model Volkswagen panel truck which was being driven by the plaintiff and a 1962 model International dump truck owned by the defendant, A. D. Pittman, and which was being operated by his son, defendant Key Pittman. The defendants have appealed from the action of the trial court in entering judgment against them on the jury verdict for $10,000 in favor of the plaintiff for personal injuries, medical and hospital expenses and loss of earnings sustained by him as a result of the collision of the two motor vehicles.

On this appeal the defendants rely upon five assignments of error as follows: (1) The trial court erred in admitting testimony of Ronald Chenoweth concerning the speed of the Pittman truck and the 'manner and method' of its operation prior to the occurrence of the collision and at a place approximately three miles distant from the place where the collision occurred; (2) the plaintiff was guilty of contributory negligence as a matter of law; (3) the trial court erred in granting the plaintiff's instructions numbered one and four, respectively, as amended; (4) the verdict is contrary to the law and the evidence; and (5) the verdict is excessive.

The collision occurred in the City of Elkins at or near a point where Heavner Avenue joins North Randolph Street from the west side. Immediately before the collision occurred, the plaintiff was driving the Volkswagen panel truck northward toward Parsons on North Randolph Street, which is also U.S. Route 219. The Pittman truck approached the scene of the collision on U.S. Route 219 from the opposite direction; that is, the Pittman truck was proceeding from Parsons to Elkins.

The Volkswagen panel truck was of light construction, having its motor at the rear. It was equipped with snow tread tires on the rear wheels. The Pittman truck was equipped with ten wheels, weighed 16,400 pounds when empty, and was used for hauling coal. It appears without dispute that, at the time of the occurrence of the accident, U.S. Route 219 at the scene of the collision and throughout the entire distance between Parsons and Elkins, was covered by ice and snow so as to make driving conditions quite hazardous.

Immediately before the collision, the plaintiff was driving the Volkswagen down a portion of North Randolph Street known as Cut Hill, intending to turn to his left into Heavner Avenue.

The plaintiff testified that, because of the slippery condition of the highway, he was descending the hill at a speed of 15 to 20 miles an hour, applying his brakes lightly in order to maintain control of the vehicle; that he was using the next to the lowest of four forward gears; that when he first saw the Pittman truck, it was about a block beyond the bottom of the hill approaching a slight left turn in the highway at a high rate of speed on the plaintiff's right side of the center of the highway; that the Pittman truck 'began veering back and forth in the road;' that thereupon the plaintiff applied his brakes 'a little harder', with the result that the Volkswagen started 'sliding toward' the Pittman truck; that the Pittman truck proceeded to its right and struck a utility pole in or near Heavner Avenue at the place where it connects with North Randolph Street; that the Pittman truck came to rest with its rear portion across the center of the highway in such a position that it would have been impossible for the plaintiff to have passed in his struck; that the Volkswagen was out of control on the slippery highway when it slid into the Pittman truck; that the Pittman truck had been in a standing position four or five seconds before the collision occurred; that, as a result of the collision, the front bumper of the Pittman truck came against the clutch and brake pedals of the Volkswagen; that he, the plaintiff, was pinned in his vehicle for an hour after the collision before he was released by means of a jack; and that thereafter he was taken in an ambulance to Davis Memorial Hospital in Elkins for treatment of injuries he sustained in the collision. The general effect of the plaintiff's testimony is that the Pittman truck was coming toward him while partially on its left side of the road, later weaving back and forth in the highway; that the plaintiff applied his brakes with increased force in order to avoid a head-on collision of the two vehicles; and that, because of the increased force employed by him in the application of his brakes, the Volkswagen became unmanageable on the slippery highway and slid into the Pittman truck after it came to rest. The plaintiff's version of the collision is corroborated in various particulars by testimony of witnesses who appeared in his behalf.

Ronald Lee Chenoweth testified that he, his brother, his father and David Day had gone from Elkins to Parsons on the day in question to lay bricks in connection with the construction of a dwelling; that they were unable to work because of the inclement weather and that consequently all of them returned to Elkins; that they came to the scene of the accident immediately after it occurred; that during the course of the return, he was driving a 1953 model Ford automobile; that though he had chains on the rear wheels of his automobile, he traveled at a speed of 35 to 40 miles an hour; and that the Pittman truck passed him about three miles from the scene of the accident. The witness was asked the following questions and gave the following answers: 'Q. Did he go on out of sight then ahead of you? A. I hope to tell you he did. Q. About what speed do you think he was traveling when he passed you? A. I don't know that, but I tell you one thing he was flying.' Counsel for the defendants objected to the...