Reece v. Hall

• Decision Date: 18 December 1956
• Docket Number: No. 10809,10809
• Citation: 142 W.Va. 365,95 S.E.2d 648
• Parties: Clarence Elmer REECE v. Dorothy Lee HALL et al.
• Court: West Virginia Supreme Court

Page 648

95 S.E.2d 648

142 W.Va. 365

Clarence Elmer REECE v. Dorothy Lee HALL et al.

No. 10809.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1956.

Decided Dec. 18, 1956.

Syllabus by the Court.

1. An essential element of negligence on the part of a plaintiff, negligence which would defeat his recovery, is lack of due care. 'Due care is a relative term and depends on time, place and other circumstances. It should be in proportion to the danger apparent and within reasonable anticipation.' Point 2, Syllabus, Johnson v. United Fuel Gas Co., 112 W.Va. 578 [166 S.E. 118, 170 S.E. 429].

2. 'A verdict, inconsistent with physical facts which are admitted to be true or are clearly established, will be set aside as contrary to the plain preponderance of the evidence.' Syllabus, Marshall v. Conrad, 118 W.Va. 321 .

3. 'The care required by law of one in a sudden emergency is that of the average person under like circumstances.' Point 6, Syllabus, Robertson v. Hobson, 114 W.Va. 236 .

W. H. Ballard, II, P. J. Flanagan, Welch, M. E. Boiarsky, Charleston, for plaintiff in error.

Samuel A. Christie, Welch, Sanders, Smoot & Sanders, Bluefield, for defendants in error.

GIVEN, Judge.

Plaintiff, Clarence Elmer Reece, instituted his action in the Circuit Court of McDowell County against defendants, Dorothy Lee Hall, Arthur H. Cook and Ethel Gillespie, for recovery of damages alleged to have resulted from negligence of defendants in the operation of automobiles. On the first trial, the jury were unable to agree on a verdict as to defendants Hall and Gillespie, but, on direction of the court, returned a verdict for defendant Cook. On the second trial, the jury returned a verdict of $15,000 in favor of plaintiff against defendants Hall and Gillespie. Judgment was entered on the verdict against Hall, but the court set aside the verdict as to Gillespie, and granted her a new trial. Questions arising on the writ of error granted by this Court relate only to the action of the trial court in setting aside the verdict returned against Gillespie, no writ of error having been sought as to the judgment against Hall.

Plaintiff's injury occurred on McDowell Street, in the City of Welch, on February 28, 1953, on a Saturday afternoon, north of Bank Street, approximately opposite the front of the fire station. A traiffc light was operating at the intersection of McDowell and Bank Streets. A number of automobiles were stoped on McDowell Street, awaiting a change of the traffic light signal. Plaintiff, intending to cross McDowell Street, from the east side to the west side, near the rear of the last stopped automobile, one being driven by John Goins, observed the automobile then being driven by defendant Gillespie approach the rear of and stop within about two feet of the Goins automobile. Plaintiff then attempted to pass through the space between the rear of the Goins automobile and the front of the Gillespite automobile, but in doing so was struck and fastened by an impact of the Gillespie automobile being forced against the rear of the Goins automobile. There is no dispute as to the facts just stated. Neither is there any doubt that the impact which first fastened plaintiff was caused by the driving of the automobile, then being operated by the defendant Hall, against the rear of the Gillespie automobile. Plaintiff contends, however, that after the first impact the Gillespie car was moved backward, and, because of the negligence of the defendant Gillespie, was a second time driven against the rear of the Goins automobile, before plaintiff could extricate himself from the position in which he was fastened by the first impact. As to this contention the evidence is in sharp conflict, and the evidence relating to this point introduced on behalf of plaintiff necessarily must be stated in detail.

Ardella Carter was a witness for plaintiff. She lived in an apartment near the point of the accident and, at the time of the accident was, from an open window, watching traffic on McDowell Street. She observed plaintiff start between the Goins and Gillespie automobiles and testified that the 'cars came together * * * and he was caught between those cars * * * they went back a little, then came together again. Then he crumpled over'. She further testified to the effect that the space between the rear of the Goins automobile and the front of the Gillespie automobile, when plaintiff started between them, was only about two feet. Jim Weddle also observed the accident from a window, and testified to the effect that when plaintiff was between the two automobiles, they came together, 'pinning him between the cars. The car rolled back just a little bit and came up against him again and held him'. On cross-examination, this witness was asked the following questions, to which he gave the following answers:

'Q. And the car in front moved forward slightly didn't it? A. I don't know whether the car in front moved forward slightly or whether the car that hit him moved back a little. I couldn't say. I just know they opened up and released him for a moment.

'Q. And he was momentarily released? A. Yes, sir.

'Q. And the cars pinned him against the bumper again? A. Yes, sir.

'Q. And it was over; it all occurred in a matter of seconds? A. That is right'.

Donald Dotson, a member of the fire department, observed the accident. He testified:

'* * * I was looking across talking, and the boy throwed his hand out on the car as it him him. The car seemed to give back with his hand when he struck it back.

'Q. How far back did that car go? A. I will say a couple of feet. I wouldn't be exact but it was somewhere around about a couple of feet.

'Q. When the car went back, what did he do then? A. Well, it seemed to make another bump and when it made another bump it hit this boy's leg and this car knocked Johnny Goins' car up on the station wagon and that is when this boy, I think his name is Buck Reece, when it caught him and held him between the two cars.'

On cross-examination, the witness was asked about the distance the Gillespie automobile moved back after first striking the Goins automobile, and stated:

'When I first saw him step dwn between there, that is when the calamity happened.

'Q. He was hit by the first blow? A. He was hit by the first blow. Then he pushed the car away and it seemed the car rolled back and come back again, the way it appeared, and that is when Johnny Goins car.

'Q. It didn't go very far? A. It moved back, I will say, a couple of feet. I couldn't say definitely. It rolled back and then started to lunge.'

Plaintiff testified to the effect that when he was about halfway between the two automobiles he heard a 'bump' and 'tried to back out and stuck up my hand and hit Mrs. Gillespie's car * * * When I put my hand up in the middle of the car it stopped. It was just like a bump in back. I heard it and was trying to get back out of the cars and when I got this leg out, it seemed like the car just jumped at me then.'

John Goins, a patrolman of the City of Welch, driver of the automobile hit by the Gillespie automobile, heard the automobiles behind him strike and immediately looked back and saw plaintiff falling. He was asked if the accident happened suddenly and answered: 'Yes, it was just like a thought almost the way it happened. I heard that noise and it all come together.' As before noted, the evidence offered on behalf of the defendant Gillespie is in sharp conflict with the evidence offered on behalf of plaintiff, and is to the effect that there was only one impact between the Gillespie automobile and the Goins automobile, and that such impact was the result of the Hall automobile being driven against the rear of the Gillespie automobile. We are necessarily bound, by the jury verdict, as to the contention of plaintiff that there was a second impact of the Gillespie automobile with the rear of the Goins automobile, but the mere happening of the second impact does not necessarily establish negligence of the driver of the Gillespie automobile.

There was no 'crosswalk' across McDowell Street at the point where plaintiff was attempting to cross at the time of the accident. An ordinance regulating traffic over the streets of the City of Welch defines crosswalk as 'That portion of a roadway ordinarily included within the prolongation of curb and property lines at intersections, or any other portion of a roadway clearly indicated for pedestrian crossing by lines or other markings on the surface.' Other pertinent provisions of the ordinance are: 'The operator of any vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at the end of a block, except at intersections where the movement of traffic is being regulated by police officers or traffic control signals'; and 'Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the roadway, provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.'

While numerous points are made as to the action of the trial court in setting aside the verdict returned...