Richmond v. Campbell

Decision Date23 June 1964
Docket NumberNo. 12288,12288
Citation148 W.Va. 595,136 S.E.2d 877
CourtWest Virginia Supreme Court
PartiesMelvin E. RICHMOND v. Oather B. CAMPBELL. James F. RICHMOND, etc., v. Oather B. CAMPBELL.

Syllabus by the Court

1. The driver of a forward vehicle cannot make sudden and unexpected stops that may imperil vehicles approaching from the rear and must in all events comply with the requirements of the law with regard to the giving of signals indicating his intention of turning off the highway.

2. Compensation for pain and suffering is an indefinite and unliquidated item of damages, and there is no rule or measure upon which it can be based. The amount of compensation for such injuries is left to the sound discretion of the jury, and there is no authority for a court to substitute its opinion for that of the jury. A mere difference in opinion between the court and the jury as to the amount of recovery in such cases will not warrant the granting of a new trial on the ground of inadequacy unless the verdict is so small that it clearly indicates that the jury was influenced by improper motives.

3. A verdict which disregards the instructions of the court or constitutes a mistake and by virtue thereof does not cover the actual pecuniary loss properly proved will be set aside.

4. Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages.

Ashworth & Ashworth, John C. Ashworth, Beckley, for appellant.

Mann & Mann, Jack A. Mann, Beckley, for appellee.

BERRY, Judge.

These actions arose out of an accident involving an automobile owned by the defendant, Oather B. Campbell, and a motor scooter owned by the plaintiff, Melvin E. Richmond, and being operated by his son, James F. Richmond, which occurred on September 5, 1961, near Piney View, Raleigh County, West Virginia, on U.S. Route 19. The action of plaintiff James E. Richmond, who was under 21 years of age at the time of the institution of said action, was brought through his father as his next friend, to recover damages for personal injuries as a result of the accident. The action of the plaintiff Melvin E. Richmond was brought in his own right for damages to the vehicle owned by him, loss of wages as a result of the injury to his son and for hospital and medical expenses incurred in connection with the injuries to his son. These actions were consolidated and tried together in the Circuit Court of Raleigh County, West Virginia. The jury returned verdicts in favot of James F. Richmond in the amount of $5000.00, and in favor of Melvin E. Richmond for $1500.00. Motions to set aside the verdicts were timely made by the plaintiffs and overruled by the trial court, after which final judgments were entered by the said trial court on July 6, 1963. Upon application on behalf of both plaintiffs in the consolidated actions to this Court for an appeal from the judgments of the trial court, and appeal was granted on November 4, 1963. The consolidated actions were submitted on arguments and briefs to this Court for decision at the April Special 1964 Term.

The accident in question occurred while the plaintiff James F. Richmon and the defendant, Oather B. Campbell, were on their way home from work, each proceeding in the same direction on U.S. Route 19, near Piney View, with the plaintiff James F. Richmond riding a small motor scooter in front of the defendant, Oather B. Campbell. Both the plaintiff and defendant had proceeded on the highway for some distance in this manner, although the defendant, who was driving his automobile at about 40 miles per hour, closed the distance slightly between the vehicles until he was finally about a hundred feet behind the motor scooter, at which time James F. Richmond started to turn into the driveway leading to his home, and the defendant, not being able to pass the motor scooter on the left because of an approaching automobile applied the brakes on his automobile but was unable to stop his vehicle and it struck the rear of the motor scooter, throwing James Richmond onto the hood of his automobile, and then off onto the side of the road, seriously injuring him.

The weather at the time of the accident was clear, although it had been raining and the highway was wet. The defendant Campbell stated that the plaintiff Richmond gave no signal of his intention to turn to the right or to stop, and that when he came to the top of a small rise in the highway he was about 100 feet behind this plaintiff, at which time the motor scooter was almost stopped. He stated that he first intended to go around but was prevented from doing so because of an oncoming car, and that when he applied his brakes he skidded into the motor scooter. The operator of the motor scooter, James F. Richmond, stated that he gave a hand signal about 20 feet before he attempted to turn right and that the stop light on his motor scooter was in working order the evening before the accident. He further stated that he did not know anyone was following him, that no signal by horn or otherwise was given by the defendant and that he could not see defendant in the rear vision mirror because it was foggod up.

The question of negligence and contributory negligence were submitted to the jury under proper instructions of the court, and the jury resolved the question of liability in favor of the plaintiffs. It is conceded by the defendant that the question of liability is not involved in this appeal.

Three motions were made in the trial court by the plaintiffs to set aside the verdicts of the jury. A motion was made on behalf of each of the plaintiffs to set aside the verdicts in their favor and to grant a new trial to each of them. A motion was made by the plaintiff Melvin E. Richmond for a new trial upon the issue of damage alone. All of the motions were overruled by the trial court. It is the contention of the appellants, plaintiffs below, that the trial court erred in not setting aside the verdicts and in not awarding to them new trials because the verdicts were inadequate, contrary to the law and evidence, and contrary to the instructions of the court; that error was committed in the refusal to give Instruction Number 4, offered by the plaintiffs; and that the court erred in not awarding the plaintiff Melvin E. Richmond a new trial upon the issue of damages alone.

The plaintiff James F. Richmond received severe injuries in the accident which included a compound, comminuted fracture of the lower leg, concussion, contusions and abrasions about the face and body, the fracture of the lower right leg necessitating the use of a cast on the leg which was worn from September 5, 1961, until April 11, 1962. He remained in the hospital for a period of two weeks and was then cared for by his mother at his home. As a result of the injuries his right leg was left about three-quarters of an inch shorter than his left leg and his right leg was atrophied to an extent that it was an inch or more smaller than the other one. After being discharged from the doctors' care and upon the completion of physio-therapy treatments on October 4, 1962, over a year after the accident, it was the opinion of the doctors that although he could do work around filling stations, clerk in a store and drive a truck, he would be physically unable to do strenuous manual labor because of his injuries.

It is conceded by the parties that Melvin E. Richmond, father of James, is entitled to recover on his own behalf for loss of wages of his infant son, and for the actual medical, hospital and other expenses incurred as a result of the injuries to his son and the jury was so instructed by the court. The exact amount proved during the trial of this case as to expenses incurred for injuries received by James Richmond for medical, hospital and other expenses amounted to $1400.55, and the loss of wages during the time he was incapacitated from the date of the injuries to the time he was discharged by the doctors amounted to $4598.53, or a total of $5999.08.

James F. Richmond had been recently graduated from high school, and the day...

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