Ratlief v. Yokum, 14507

• Citation: 280 S.E.2d 584,167 W.Va. 779
• Decision Date: 17 July 1981
• Docket Number: No. 14507,14507
• Parties: William C. RATLIEF v. Ira P. YOKUM.
• Court: Supreme Court of West Virginia

Page 584

280 S.E.2d 584

167 W.Va. 779

William C. RATLIEF v. Ira P. YOKUM.

No. 14507.

Supreme Court of Appeals of West Virginia.

July 17, 1981.

Syllabus by the Court

1. "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Syllabus Point 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).

2. "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 to form a judgment, fails to act in the most judicious manner, is not guilty of actionable negligence if he exercises the care which would be exercised by a reasonably prudent person in like circumstances." Syllabus Point 2, Reilley v. Byard, 146 W.Va. 292, 119 S.E.2d 650 (1961).

3. The doctrine of last clear chance was a judicial development to modify the harshness of the contributory negligence rule.

4. The doctrine of last clear chance is not available to the defendant.

5. The historical reason for the doctrine of last clear chance no longer exists since our adoption of comparative negligence. Furthermore, because of the doctrine's interrelationship with the issue of proximate cause and because of the confusion surrounding the application of the doctrine, we believe the better course would be to abolish the use of the doctrine of last clear chance for the plaintiff.

6. " 'An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2 Syllabus, Holler v. Linger, 151 W.Va. 255, (151 S.E.2d 330 (1966))." Syllabus Point 3, Orndoff v. Rowan, 156 W.Va. 205, 192 S.E.2d 220 (1972).

7. The collateral source rule normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party.

8. The collateral source rule also ordinarily prohibits inquiry as to whether the plaintiff has received payments from collateral sources. This is based upon the theory that the jury may well reduce the damages based on the amounts that the plaintiff has been shown to have received from collateral sources.

9. As a general rule in both civil and criminal cases, bias, prejudice or expected favors as a result of testifying is admissible on the issue of credibility.

10. Interrogatory answers can be used for evidentiary purposes since Rule 33, West Virginia Rules of Civil Procedure, states that "the answers may be used to the extent permitted by the rules of evidence." One recognized use of interrogatory answers is to impeach a witness with his prior inconsistent statement.

Sponaugle & Sponaugle and George I. Sponaugle, II, Franklin, for appellant.

Charles W. Smith, Keyser, for appellee.

MILLER, Justice:

This appeal from the Circuit Court of Grant County is brought by William C. Ratlief, the plaintiff below, after a jury verdict in favor of the defendant, Ira P. Yokum. The appellant/plaintiff alleges that the trial court erred in not directing a verdict in his favor; in giving certain erroneous instructions, including one of the defendant's instructions on last clear chance; and, in allowing inadmissible testimony to be heard by the jury. Because we believe that the trial court was incorrect in allowing the defendant to rely on the theory of last clear chance, we reverse.

This lawsuit arose out of a motor vehicle accident that occurred on a clear afternoon in November of 1975. It is undisputed that the plaintiff Ratlief was proceeding south in his car on U.S. Route 220 from Petersburg to Franklin. At the same time, the defendant Yokum was driving his truck out of a driveway on the west side of U.S Route 220 and was preparing to turn south towards Franklin. A third vehicle which was driven by a Stanley Hostler in a northerly direction on U.S. Route 220 was also involved in the accident. However, Hostler is not a party in this lawsuit.

The evidence concerning the accident itself is hotly contested. According to the plaintiff's testimony, he was proceeding south at a speed of approximately 50 miles per hour when he saw the defendant's truck to his right in a driveway. He took his foot off the accelerator to see what the truck would do and when he was twenty to thirty feet from the driveway the defendant drove onto the highway. Plaintiff claims that because the defendant pulled onto the highway immediately in front of his car, he had to swerve into the northbound lane of Route 220. This action resulted in the plaintiff's car striking Hostler's automobile.

The defendant Yokum testified that he looked in both directions along U.S. Route 220 as he pulled out of the driveway. He stated he did not see any traffic proceeding south but he did see Hostler's automobile traveling north. After driving onto the highway, he turned south and was about seventy feet beyond the driveway when the accident occurred.

At the trial, testimony was also heard from Stanley Hostler, the driver of the northbound automobile struck by the plaintiff Ratlief, and the state trooper who investigated the accident. Hostler testified that, as he was traveling along U.S. Route 220, he saw a truck pull out of a driveway to his left. He stated that almost simultaneously a car came out from behind the truck into his lane. He could not avoid the oncoming car and it struck his car head-on in the northbound lane. The state trooper's testimony primarily consisted of observations made at the accident scene. With the use of a map, the trooper pointed out where he found broken glass and where he observed two forty-five foot skid marks left by Ratlief's car. ¹ After considering the testimony of these witnesses and a few other witnesses who testified about damages, the jury returned a verdict for the defendant.

The plaintiff now argues that the trial court erred in not directing a verdict in his favor. This Court has long recognized that a directed verdict should not be granted when there is conflicting evidence as to negligence. Hovermale v. Berkeley Springs Moose Lodge, W.Va., 271 S.E.2d 335 (1980); Jividen v. Legg, W.Va., 245 S.E.2d 835 (1978); Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973); Adams v. Sparacio, 156 W.Va. 678, 196 S.E.2d 647 (1973); Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 (1963). As we stated in Syllabus Point 5 of Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964):

"Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them."

From our prior recitation of the facts, it is obvious that the facts on negligence were clearly in dispute. Therefore, the trial court did not err in allowing the case to go to the jury.

The plaintiff next complains that the trial court refused to give his "sudden emergency" instruction as tendered. In several cases, we have recognized that the driver of an automobile is held to a reduced standard of care when he is suddenly confronted with unforeseeable or emergency circumstances. Young v. Ross, 157 W.Va. 548, 202 S.E.2d 622 (1974); Reilley v. Byard, 146 W.Va. 292, 119 S.E.2d 650 (1961); Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1960); Reece v. Hall, 142 W.Va. 365, 95 S.E.2d 648 (1956). The "sudden emergency" rule was expressed in this fashion in Syllabus Point 2 of Reilley, supra:

"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 to form a judgment, fails to act in the most judicious manner, is not guilty of actionable negligence if he exercises the care which would be exercised by a reasonably prudent person in like circumstances."

As stated in Reilley, it is clear that a party cannot rely on the doctrine of "sudden emergency" when the emergency is created in whole or in part by the party's own negligence. Lilly v. Taylor, 151 W.Va. 730, 155 S.E.2d 579 (1967); Korzun v. Shahan, 151 W.Va. 243, 151 S.E.2d 287 (1966); Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); Mulroy v. Co-operative Transit Co., 142 W.Va. 165, 95 S.E.2d 63 (1956). The trial court refused to give plaintiff's "sudden emergency" instruction as written because it did not contain the statement that the party seeking the benefit of a "sudden emergency" instruction cannot contribute in whole or in part to the emergency. The court added this language to the plaintiff's instruction before giving it to the jury and under our law the trial court acted correctly.

The plaintiff next objects to the trial court giving seven of the defendant's instructions as being either unsupported by the evidence or incorrect statements of law. Six of the instructions involved various portions of our motor vehicle statute relating to traffic regulations in Chapter 17C of the W.Va. Code. The instructions substantially followed the applicable statutory language and were relevant to the negligence issues raised under the facts of the case. The seventh instruction objected to by the plaintiff was a "last clear chance" instruction offered by the defendant. We have not had occasion to directly consider whether a defendant is entitled to utilize the last clear chance doctrine to insulate his negligence. In Bower v. Brannon, 141 W.Va. 435, 439-40, 90 S.E.2d 342, 345 (1955), we said:

"Heretofore, in this jurisdiction, the last clear chance doctrine has been applied only against defendants. However, we are not unmindful of the rule laid down in Willard Stores, Inc., v. Cornnell...