Reilley v. Byard

Decision Date02 May 1961
Docket NumberNo. 12081,12081
Citation146 W.Va. 292,119 S.E.2d 650
CourtWest Virginia Supreme Court
PartiesPaul E. REILLEY v. Howard Lee BYARD and Walter Humphrey.

Syllabus by the Court

1. Where two or more persons are guilty of separate acts of negligence which in point of time and place concur, and together proximately cause injury to another, they are guilty of concurrent negligence for which they may be held jointly and severally liable in an action by the injured person or, in case death results therefrom, by his personal representative.

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.

3. In a case tried by a jury where the evidence relating to the defense of sudden emergency 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 the defendant was confronted with a sudden emergency, the nature and extent of the emergency, whether the emergency was created by the defendant, and whether the defendant in the emergency conducted himself as a reasonably prudent person would have conducted himself in like circumstances.

4. The question of negligence is for the jury when the evidence relating thereto, though undisputed, is such that reasonable men may draw different conclusions therefrom.

5. '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].

Schmidt, Laas & Schrader, Thomas B. Miller, Wheeling, Raymond R. Hyre, Moundsville, for plaintiff in error.

James P. Clowes, James D. McDermott, Russell B. Goodwin, Sr., Wheeling, for defendants in error.

CALHOUN, Judge.

This case involves an action of trespass on the case instituted in the Circuit Court of Marshall County by Paul E. Reilley against Howard Lee Byard and Walter Humphrey, in which the plaintiff alleges that he sustained personal injury and property damage as a consequence of an automobile accident caused by the concurrent negligence of the two defendants.

A default judgment was taken against Walter Humphrey and thereafter the case proceeded to trial before a jury against the other defendant, Howard Lee Byard. At the conclusion of the plaintiff's case, the court, on motion of the defendant, directed a verdict in his favor. By an order entered on February 25, 1960, the court overruled the plaintiff's motion to set aside such verdict and to grant him a new trial, and a final judgment was rendered on the verdict in favor of the defendant. From that final judgment the plaintiff prosecutes this writ of error.

The sole question presented is whether the plaintiff made a case proper for jury determination; or, stated otherwise, whether the trial court was warranted in taking the case from the jury and in directing the verdict in favor of the defendant. The only testimony bearing upon that question is that of the plaintiff. The pertinent facts, therefore, are not in dispute so far as the record in the present case is concerned.

On June 10, 1958, the plaintiff and Howard Lee Byard, the defendant, left their home in Glen Dale in Marshall County about 7:40 a. m., and proceeded southward to attend an auction at Ravenswood. The defendant requested that the plaintiff accompany him to the auction, but the trip was made in plaintiff's 1952 model Buick automobile. The plaintiff operated the automobile on the trip to Ravenswood, where they arrived about 10:30 a. m. They made no purchases at the auction. When the two prepared to return to Glen Dale, the defendant volunteered to operate or drive the plaintiff's automobile, and the plaintiff replied that 'it would be all right'. Consequently, the return trip to Glen Dale was commenced northward over State Route 2, the defendant driving or operating the plaintiff's automobile, and the plaintiff being seated meantime to the right of the driver on the front seat. When Reilley and Byard reached a point about one and one-half miles south of Parkersburg, an automobile operated by Walter Humphrey approached from their right or the east side of the highway on an intersecting secondary road referred to in the testimony as Rural Route 4, and ultimately entered three or four feet upon State Route 2. Under such circumstances, the Buick automobile which was being operated by Howard Lee Byard, defendant, proceeded to its left, across the oncoming or southbound traffic lane, across a berm adjacent to the highway on the left or west side thereof, and struck a telephone pole with such force and violence that the plaintiff's Buick was demolished and he sustained severe personal injuries for which he seeks recovery in this action.

When 900 feet southward on State Route 2 from the point of the intersection, the plaintiff observed the automobile operated by Walter Humphrey approaching at 'a moderate speed for a country road'. It did not stop at any time prior to 'entering onto the highway'. When about 250 feet from the intersection of the two highways, the plaintiff 'observed the Humphrey car starting into the intersection'. In this connection the following questions were propounded to the plaintiff, and he gave the following answers:

'Q. At this time what did you do, if anything? A. At that time I started to say something to Mr. Byard, but at that time he had already put the brakes on and turned the car to the left of the highway.

'Q. Can you state how far the Humphrey car encroached onto state route 2, if any? A. I would say three or four feet.

'Q. As this time that the Humphrey car had encroached on state route 2 in front of your car, had Mr. Byard put the brake on? A. Yes, sir.

'Q. How long before that had he had his brakes on? A. I would say about 200 feet--125 feet, something like that.

* * *

* * *

'Q. Do you recall prior to the accident how fast the defendant Byard was traveling in the car? A. I would say approximately fifty miles an hour.

'Q. How far was the car in which you were riding from the intersection when the defendant Byard placed his brakes on? A. 200 feet--125, somewhere in that neighborhood. Between that.

'Q. At the time that the Humphrey car had encroached onto state route 2, will you state whether or not there was sufficient room for your car to pass around the Humphrey car? A. Yes, sir, there was.

'Q. Was there sufficient room by using the paved portion of the highway? A. Yes, sir.

* * *

* * *

'Q. Did that automobile at any time, I believe you stated it was in your view the whole time. Did it at any time stop prior to entering onto the highway? A. No, sir.

'Q. Did it appear to you to slow down in any way or did they continue at the same speed onto the highway? A. As far as I could see. I mean when the car was pulling out like that, and we put the brakes on, everything was happening so fast, and I braced myself, and whether he stopped there or not, I couldn't say.

'Q. I will ask you whether or not, Mr. Byard applied his brakes as soon as the automobile came onto the highway? A. I would say so, yes.

'Q. Could you see how many people were in the Humphrey automobile? A. Two.

'Q. Could you see what those people in the automobile were doing? A. Well, if he wasn't talking, he was looking up the road to look to see if there was any traffic coming.

'Q. Looking up the road. You mean, looking north? A. North.

'Q. Do you recall whether or not he looked toward you or south? A. As I say, not at the time I braced myself and everything was happening. I didn't have time to look at his car any more because everything went out of control.

'Q. But at the time the brakes were applied you were close enough to see two people in the car? A. And he was looking north.

'Q. And he was looking north? A. That is right.

* * *

* * *

'Q. When the Humphrey automobile was at that point, I will ask you if that is when Mr. Byard applied the brakes? A. Not quite. The car was on the pavement--on the highway.

'Q. In other words, Mr. Byard, applied the brakes after the Humphrey automobile even proceeded more than that? A. A little bit.

'Q. Where were you sitting in that automobile? A. In the front seat, right side.

'Q. Was your view obstructed in any way? A. No, sir.

* * *

* * *

'Q. Paul, will you tell us whether or not your recollection, you observed this accident and the conditions existing at that time, will you say whether or not there was enough room to drive around the Humphrey car on route 2? A. Oh, yes, a lot.'

Immediately prior to the occurrence of the accident, the plaintiff's Buick automobile, including brakes and steering apparatus, was in good mechanical condition, and it was equipped with good tires. State Route 2 is comparatively straight and level for a distance of 900 feet southward from the intersection. As Reilley and Byard approached the intersection from a point 900 feet southward, they had a clear and unobstructed view of Rural Route 4 and of the point of its intersection with State Route 2. At the time in question, the highway was dry and visibility was good. The paved or hard-surfaced portion of State Route 2 in this area is 22 feet in width. At the scene of the accident there is a 'pretty level' berm 15 feet in width on the left or west side, the opposite side from which the Humphrey automobile approached.

The testimony fails to disclose what happened to the Humphrey automobile after it proceeded three or four feet 'onto...

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